Court of Appeal Judgments of Public Interest

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Case number
[2021] NZCA 482
Date of Judgment
23 September 2021
Family Law – Intercountry adoption – Registration of birth – Birth certificate 

MP and his wife (the Ps), who are New Zealand residents and German citizens, adopted their child (A) pursuant to the Hague Convention on Intercountry Adoption.  That adoption was effected by a certificate issued by the Thai Central Authority under art 23 of the Convention.  The Convention is recognised and given effect to in New Zealand pursuant to the Adoption (Intercountry) Act 1997.  That Act provides for Convention adoptions to have legal effect in New Zealand.   

The Convention distinguishes between jurisdictions, such as New Zealand, under whose laws adoption severs existing parents-child relationships (a “full” adoption) and those which do not (a “simple” adoption).  It provides for “simple” Convention adoptions in one jurisdiction to be converted to “full” adoptions in another.   

In the course of obtaining recognition under German law of their adoption of A, the Ps were advised an order from the Family Court in New Zealand under s 12(1)(b) of the Adoption (Intercountry) Act was required to convert A’s “simple” Convention adoption under Thai law into a “full” adoption under New Zealand law. 

The Ps obtained two orders from the Family Court: the first classifying A’s adoption as a full adoption under New Zealand law; and the second confirming that A’s adopted surname was P.   

The Ps then engaged with the Registrar-General of Births, Deaths and Marriages to obtain a birth certificate for A under the surname P.  The Registrar-General took the view that he could only register A’s name at birth as recorded on the art 23 certificate.  Moreover, in his view A’s Convention adoption had, from the start, been a full adoption, and so the Family Court orders were of no effect.  The High Court made two declarations consistent with the Registrar-General’s approach.  In this appeal, MP challenges the making of those declarations.   

Held: Appeal allowed.   
(1) The High Court’s declaration as to the registration of A’s name is quashed. A new declaration is made, requiring A’s birth certificate to be issued under the surname P, in the following terms:
 “When registering an adoption to which the Adoption (Intercountry) Act 1997 applies, the Registrar-General must record the name (if any) specified by the child’s adoptive parents as advised to the Registrar-General at the time of notification or, where an order is made under s 12(1)(b) of that Act, as recognised or recorded in that order, and birth certificates are to be issued pursuant to s 63 of the Births, Deaths, Marriages, and Relationships Act 1995 accordingly.” 

On the basis the better interpretation of the art 23 certificate was that A’s adoption was a simple one under Thai law, the validity and legality of the Family Court orders is confirmed.
Case name
Case number
[2021] NZCA 456
Date of Judgment
10 September 2021
Mr Maid, a former Aviation Security officer, was found guilty following trial by jury on a charge of taking an imitation improvised explosive device (IIED) into the security enhanced area (SEA) at Dunedin International Airport (Aviation Crimes Act 1972, s 1A)). He placed the IIED in a satchel, before taking it through the SEA and leaving it in his patrol vehicle. A few hours later, he radioed his superior to report foreign object debris near a Localiser Hut on the runway. He then placed the satchel containing the IIED on the tarmac alongside a part of the airport's navigation system. The taking of the IIED through the SEA, which lasted approximately three minutes, was part of his wider scheme to cause a security incident to expose deficits in the Airport's security system, but only the taking of the IIED through the SEA is a criminal act under the statutory regime. At the District Court at Dunedin, he was sentenced to three years' imprisonment. He appeals against his conviction and sentence. He says the jury's verdict was unreasonable, alleging also that errors were made in the question trail and in the Judge's summing up. He also says his sentence was manifestly excessive.

Held: Appeal against conviction dismissed, appeal against sentence allowed. Sentence reduced to 17 months' imprisonment.

(1) The Court held that the jury's verdict was not unreasonable. It recognised that the Crown's case was a circumstantial one, but agreed with the Judge's observation at sentencing that the Crown's case in proving Mr Maid's overall course of conduct was "so compelling that the only piece missing was actually seeing [him] place the imitation IED by the hut [near the runway]". But the Court emphasised that it was important to distinguish between Mr Maid's wider scheme of causing a security incident from the actually criminal act of carrying the IIED in to the SEA. Crucially, there was strong circumstantial evidence of the latter; and it was open to the jury to infer his guilt on the charge from the overall evidence of his wider scheme. Further, the Court did not agree there were errors in the Judge's summing up or the question trail.

(2) However, the Court agreed that the Judge's starting point proceeded from an incorrect assessment of Mr Maid's culpability by conflating all of Mr Maid's actions that day into a single tranche of criminal offending. Mr Maid was not criminally responsible for the entirety of his scheme, but only for the act of passing through the SEA. The Court characterised that criminal conduct as merely incidental to his wider scheme, and the legislation's purpose. That purpose was to remedy a loophole to enable prosecution of anyone identified with an item causing a security risk without having to establish an intention to board an aircraft with that item. Had he placed the IIED in the same place without taking it through the SEA, no offence would have occurred. In that context, Mr Maid's actions were not of the most serious kind contemplated by the offence. The Court also considered the Judge was overly influenced by the fact Mr Maid's actions took place two days after the Christchurch Mosque attacks. Therefore, a starting point of 20 months was appropriate and taking into account the appropriate discounts, Mr Maid's sentence was reduced to 17 months' imprisonment.
Case number
[2021] NZCA 442
Date of Judgment
07 September 2021
Appeal allowed to extent that damages reduced from NZD14,894,100 to NZD 12,081,150.  Appeal otherwise dismissed.  Orders at [202(b)–(c)] of the High Court judgment quashed.  Orders that Mr Gao is to pay damages to Zespri in the sum of NZD 12,081,150 in respect of the first cause of action and that Smiling Face is to pay damages to Zespri in the sum of NZD 12,081,150 in respect of the second cause of action are substituted.  No order for costs. 

Zespri holds plant variety rights (PVRs) for G3 and G9 varieties of golden kiwifruit in New Zealand under the Plant Variety Rights Act 1987 (PVR Act).  Mr Gao and Ms Xue, through Similing Face, grew G3 kiwifruit under licence from Zespri beginning in 2013 on an orchard in New Zealand.  In 2016 Zespri became aware G3 was being grown in China.  Zespri engaged private investigators who located a Mr Shu in China who admitted to growing G3 and G9 on orchards in China – namely the Chibi, Xianning 1, Xianning 2 and Wuhan orchards.  Two Zespri employees, Mr Max and Ms McCann Morrison, travelled to China to meet Mr Shu and visit three of those orchards.  Zespri alleged Mr Gao (acting for Smiling Face) sold G3 and G9 budwood to Mr Shu when he travelled to China to meet Mr Shu in August 2012.  Mr Gao admitted to agreeing to sell Mr Shu G3 and G9 budwood, as well as signing a False Licence Agreement with Mr Shu in October 2012.  The False Licence Agreement provided for supply of the budwood in August 2012 by Smiling Face, as well as the purported grant of property rights to G3 and G9 throughout China in exchange for RMB 10 million.  Mr Gao also admitted to agreeing to sell G3 budwood to a Mr Li in China though Mr Li later pulled out of the sale.  Zespri also alleged Mr Gao entered a joint venture with a Mr Yu in China to develop the Liangshan Yi orchard in China to which Mr Gao allegedly supplied G3.  Zespri brought proceedings against Mr Gao and Smiling Face for breaches of its New Zealand PVRs under the PVR Act and proceedings against Mr Gao and Ms Xue for breaches of their G3 Licence Agreements with Zespri.  The High Court held Mr Gao and Smiling Face breached Zespri’s New Zealand PVRs and awarded Zespri damages of NZD 14,894,100 on the basis of a notional licence fee for the orchard areas in China, discounted by 50 per cent.  The High Court also held Mr Gao and Ms Xue breached their G3 Licence Agreements with Zespri and awarded Zespri NZD 10,824,300 – again on basis of a notional licence fee for the orchard areas in China discounted by 50 per cent.  Mr Gao, Smiling Face and Ms Xue (the appellants) appeal that judgment. 

Evidence – Hearsay.  Did the Judge err in finding hearsay statements made by Mr Shu to Mr Max and Ms McCann Morrison were admissible.Held:  No.  Mr Shu’s statements as to the quantities of G3 and G9 his orchards produced and the size of the Wuhan Orchard were clearly assertions he was growing G3 and G9 and relied on by Zespri to prove he was doing so.  The statements were hearsay.  The Judge did not err in assessing the statements’ threshold reliability.  The statements were spontaneous admissions against interest and corroborated by personal observations of Mr Max and Ms McCann Morrison, the photographs and video they took, the False License Agreement, the messages between Mr Shu and Mr Gao, and Ms McCann Morrison’s evidence of the context in which the orchard visits took place.  The absence of contemporaneous documentation, including translator notes, is a matter going to weight.  The medium of translation does not itself clothe a translated statement with a hearsay character.  Proof of accuracy of translation can be assessed against the circumstances and goes to weight.  That the translated statements were amply corroborated suggests the translation, at least on significant matters, was sufficiently accurate.  No specific examples of potential mistranslation were offered.  The Judge could find Mr Shu was unavailable.  Mr Shu was compellable but outside of New Zealand and Ms McCann Morrison’s (corroborated) evidence properly established he was unwilling to give evidence.  

Plant Variety Rights – Findings of fact.  Evidence – Lay opinion evidence.  Did the Judge err in assessing the size of Mr Shu’s orchards.Held:  Yes.  The Judge transposed the sizes of the Xianning 1 and Xianning 2 orchards.  Mr Max’s affidavit evidence mixes personal observations with the hearsay statements of Zespri’s earlier investigators in China.  In the absence of evidence that the orchard sizes in his evidence were drawn from the Zespri investigators, the lack of explanation of how they were arrived at is a matter going to weight.  The appellants admissibility objection to the evidence as to orchard size was not taken in the High Court but the onus is on Zespri to adduce admissible evidence.  Mr Max and Ms McCann Morrison’s evidence as to size was not expert evidence but was admissible as lay opinion evidence.  There may be limits to how specific a statement of measurement can be, without an explanation of how that assessment was reached, before it can no longer properly be regarded as lay opinion evidence.  But that is unnecessary to decide as the exact size of orchards is only relevant to remedy which does not depend on exact measurement.  Little if any weight can be given to the satellite imagery relied on by Zespri as it contains no measurement or means to ascertain size. Mr Max gave no explanation how the size of the Chibi vineyard was determined but 1.3 ha could likely be observed by an average person and is corroborated by the photographic evidence.  The Judge did not err. The Judge relied on the reference in Mr Shu’s Marketing Proposal to a 13.3 ha orchard to set the size of the Xianning 1 orchard as being 13.3 ha.  The evidence suggests the Marketing Proposal refers to the  Xianning 2 orchard.  Mr Max’s evidence as to size is set aside as he never visited Xianning 1.  There is no evidence establishing the Xianning 1 orchard is 33 ha or any other size.  The translated sign at the Xianning 2 orchard stating it was 13.3 ha is inadmissible hearsay for the truth of its contents.  But it is evidence that Xianning 2 was described as covering 13.3 ha, meaning Xianning 2 is likely the Demonstration Park referred to in Mr Shu’s Marketing Proposal which is admissible for the truth of its contents.  Recourse to the satellite imagery is unnecessary.  The Judge did not err in assessing the size of Xianning 2.  The Judge did not err in assessing the size of the Wuhan orchard to match Mr Shu’s admissible hearsay statements to Mr Max and Ms McCann Morrison. 

Evidence – Credibility.  Did the Judge err in making adverse credibility findings.Held:  No.  Something in the nature of a material failure of process or evidence analysis apparent from the written record is needed to overcome the customary caution an appellate court must exercise in assessing the trial judge’s credibility findings.  The Judge’s view of Mr Gao’s credibility is amply justified on the evidence.  The Judge appears to have wrongly drawn on conclusions reached in relation to a Ms Xu in a contemporaneous criminal case and attributed Ms Xu’s qualifications to Ms Xue.  But the error is peripheral and the overall credibility finding was open to her to make.  An isolated peripheral error is insufficient to impugn the soundness of the judgment for delay. 

Plant Variety Rights – Findings of fact.  Did the Judge err in finding the G3 and G9 varieties would not have reached Mr Shu in China but for Mr Gao’s actions in New Zealand.Held:  No.  The Judge was entitled to reject that Mr Gao reneged on the admitted agreement to supply budwood to Mr Shu.  The False Licence Agreement and receipt of payment are documentary testimony to that effect.  Zespri could not locate the money Mr Shu is said to have paid Mr Gao despite having extensive access to his financial records, but that is not material given the ease with which money can be held in secondary banking and non-banking locations.  There was documentary evidence of Mr Shu visiting New Zealand in April 2012 but it was unlikely he obtained G3 or G9 budwood then – he gave no indication to Mr Gao of already having it. 

Plant Variety Rights – Infringement.  Did the Judge err in applying the PVR Act extraterritorially.Held:  Yes, in part.  The PVR Act does not create rights extraterritorially.  Section 17(1) concerns exclusive rights to produce for sale in New Zealand, sell in New Zealand, propagate for commercial production in New Zealand, and to authorise others to do those things in New Zealand.  The text and context of the PVR Act support this conclusion – in particular, the PVR Act gives effect to the 1978 UPOV Convention which establishes a framework of similar but independent territorial PVRs regimes which are linked only through (limited) rights of priority of registration.  Further, neither express words nor necessary implication suggest the PVR Act has extraterritorial reach.  The Judge erred in finding the signing of the False Licence Agreement breached Zespri’s New Zealand PVRs.  The False Licence Agreement contained two obligations on Mr Gao:  physical supply of G3 and G9 budwood to Mr Shu and transfer of PVR rights for those varieties in China to Mr Shu.  The first obligation was likely not operative as supply of the budwood preceded the False Licence Agreement.  The latter was a purported authorisation of propagation of the varieties in China, not New Zealand, and therefore could not fall within s 17(1)(c).  The Judge erred in rejecting the reasoning of the United States Court of Appeals for the Ninth Circuit in Subafilms Ltd v MGM-Pathe Communications Co.  The scheme of the PVR Act is consistent with the underlying premise in Subafilms:  the protected, exclusive rights granted by the PVR Act are confined to New Zealand.  But the Judge did not err in finding Mr Gao’s agreement to sell G3 and G9 to Messrs Shu, Yu and Li and preparation of G3 and G9 budwood for sale to Messrs Shu and Yu breached s 17(1).  These acts occurred in New Zealand in breach of Zespri’s exclusive right to sell its protected varieties, whether by way of export or otherwise.  Each involved “sale” to a third party in the sense defined in s 2 of the PVR Act. 

Plant Variety Rights – Damages.  Did the Judge err in fixing damages.Held:  Yes, in part.  The Judge did not err in principle in fixing damages.  Section 17(4) offers a broad suite of remedies – compensatory, exemplary and coercive – comparable to those in the Copyright Act 1994.  Compensatory damages fixed by the user principle lies within s 17(4) and is normal where there is an expropriation and use of intellectual property rights, and either plaintiff’s loss or defendant’s profit is elusive.  That was the case here, Zespri conceding it would suffer no loss due to lost sales.  But the appellants’ expropriation of Zespri’s rights disrupt its global strategy for the exploitation of its monopoly PVRs in G3 and exposes it to potentially uncontrollable competition as the material sold by the appellants proliferates in offshore jurisdictions.  User damages compensate for the expropriation of such rights.  That Zespri would not have willingly licenced the appellants is immaterial – absent a remedy the appellants would go free.  The user principle presumes a hypothetical negotiation.  Evidence as to a notional licence fee is necessary but a court may need to apply sound imagination and the practice of the broad axe.  The Judge did not err in using the licence fee for G3 propagation in New Zealand.  Applying the reasoning of the United States Supreme Court in WesternGeco LLC v Ion Geophysical Corp, infringing acts were undertaken in New Zealand.  Compensatory damages remain assessable here notwithstanding the export of the infringing material to China.  Payment of a notional licence fee for planting in China follows as a consequence of the appropriation of Zespri’s New Zealand PVRs in New Zealand.  Fixing damages by the acreage the appellants enabled to be planted was correct – that area would have been material to any hypothetical bargain.  As the period of actual infringement is material and the damages are compensatory in nature, mitigation of loss is required.  The Judge correctly applied a discount of 50 per cent.  This accounts for acreage not (yet) planted in G3 and G9, the expectation Zespri can take action to enforce its Chinese PVRs in China, and the degree of inexactitude in measuring the size of the four orchards.  For the same reasons the Judge did not err in fixing damages for Mr Gao and Ms Xue’s breaches of their G3 Licence Agreements.  Though not erring in principle, the Judge fixed damages according to an incorrect notional licence area due to the error as to the size of the Xianning 1 orchard.  Using the correct notional licence area reduces damages from NZD 14,894,100 to NZD 12,081,150.
Case number
[2021] NZCA 397
Date of Judgment
24 August 2021
The appeal is dismissed.  The appellant must pay the respondent costs for a standard appeal on a band A basis.   

Commercial law – Credit contracts – Guarantee.   

Bella Vista Homes Ltd, through its sole director Mr Cancian, entered into a “credit account application and terms of agreement for supply” with Carters.  The agreement related to the supply of building products by Carters to Bella Vista on credit.  Mr Cancian also guaranteed due and punctual payment of all monies owing by Bella Vista to Carters. 

Although Bella Vista had applied for a $700,000 credit limit, it was initially set at $50,000 as was standard practice.  Carters later made an internal decision to set a credit limit of $800,000.  It did not notify either Bella Vista or Mr Cancian about that decision.  Credit payments by Bella Vista eventually dried up, and when Bella Vista was put into liquidation the debit balance was over $1 million.   

Carters issued proceedings, which Mr Cancian defended on the basis that when Carters altered the credit limit that amounted to a variation of the agreement such as to discharge Mr Cancian from any liability liability under the guarantee in terms of the rule in Holme v Brunskill (1878) 3 QBD 495 (CA).  The High Court held that as the guarantee contained a clause which gave Carters the power to make variations to the Bella Vista agreement, the rule in Holme v Brunskill did not apply.   

Whether there had been a variation to the agreement. 
Held:  No.  Clause 2.2 of the agreement provided that Carters could impose a credit limit on Bella Vista and alter it without notice.  It is clear that this clause prevails over any particular credit limit set at any time.  At best for Mr Cancian the letter and cl 2.2 can be read together, providing in effect for a credit limit of $50,000 or such other limit as imposed by Carters without notice from time to time.  In this context, any subsequent change to the credit limit does not constitute a variation to the Bella Vista agreement but is rather simply effected pursuant to the agreement. 

If there had been a variation, whether it discharged Mr Cancian from liability under the guarantee.
Held:  No.  Even if the alteration to the credit limit were a variation to the Bella Vista agreement, an exception to the principle in Holme v Brunskill applies where the guarantee contains a clause which gives the creditor power to make variations to the contract with the debtor:  Pogoni v R & W H Symington & Co (NZ) Ltd [1991] 1 NZLR 82 (CA).  The agreement in question contained such a provision and a significant increase in the credit limit, without notice, was within the general purview of the guarantee.
Case number
[2021] NZCA 363
Date of Judgment
02 August 2021
Appeal allowed. 
Judicial Review -   Education and Training Act 2020. 

The appellant, who lives outside the home zone prescribed in the enrolment scheme for Smith Primary School, applied to enrol there. She was offered a place at the School in accordance with the predecessor of s 74(2)(a) of the Education and Training Act 2020, she having priority because her older sister is already a student there. This offer was accepted. However, due to unexpected numbers of home zone enrolments with overcrowding consequences, several months later this offer was withdrawn. The appellant unsuccessfully applied for judicial review of the withdrawal decision. 

Appeal allowed. 

The offer was not expressly conditional, and therefore the question is whether the Act should be interpreted as conferring a power to withdraw an unqualified offer of a place at a school made to an out-of-zone applicant under s 74(2)(a). The text of the Act does not support this. The use of the present tense in s 74(2)(a) ("if the applicant is offered a place in the school") is not significant. It would be a distortion of language to endeavour to read the wording as meaning the applicant must be in a continuing constant state of being offered a place at the School. The fact that the pathway for out-of-zone applicants involves a pre-enrolment process determined in advance of the enrolment date does not mean that offer is revocable up until that enrolment date. 

This is supported by the purpose of the legislation. While one purpose of the enrolment scheme is to avoid overcrowding, another is fairness and transparency in the selection of out-of-zone applicants. This is achieved in multiple ways, including by a waiting list process of balloted students not offered a place. The waiting list is to be available for inspection at the school. The Act envisages a binary scheme: an applicant is offered a place or is recorded on the waiting list in the order drawn from the ballot. However, if such offers could be withdrawn, presumably those offerees would be expected to have priority if a space later became available, and so those on the waiting list would be relegated. This could not have been the intention of the legislature. The concept of offers that could be revoked creates an opaque system, rather than one of fairness and transparency
Case number
[2021] NZCA 355
Date of Judgment
02 August 2021
Application for leave to adduce further evidence declined.  Appeal dismissed. 
Tort of invasion of privacy — Publication of private facts. 

In April 2010, the Right Honourable Winston Peters began receiving New Zealand Superannuation (NZS) at the single rate when he should have been receiving it at the partnered rate, which was lower.  The overpayment was discovered in 2017.  Mr Peters immediately arranged for the overpaid amount to be repaid.  There was no fault on the part of Mr Peters. 

Mr Boyle, the Chief Executive of the Ministry of Social Development (MSD), was advised of the overpayment.  He informed Mr Hughes, the State Services Commissioner.  On 31 July 2017, Mr Boyle briefed Ms Tolley, the Minister of Social Welfare at the time.  On 1 August 2017, Mr Hughes briefed Ms Bennett, the Minister for State Services at the time.  The briefings by Mr Boyle and Mr Hughes to their Ministers were provided under the “no surprises” principle in good faith and on a confidential basis.  There was also a disclosure by Mr Nichols, a director of MSD, to Mr McLay, an MSD employee on secondment to Ms Tolley’s office. 

Between 23 and 25 August 2017, a number of reporters received anonymous calls referring to the overpayment.  On 26 August 2017, Mr Peters became aware that the media knew about the overpayment and released a press statement to pre-empt any publicity on the issue.  Various news items were published in the media referring to, and commenting on, the overpayment. 

Mr Peters brought proceedings in the High Court alleging that the tort of invasion of privacy had been committed by a number of defendants: MSD; the two Chief Executives; and the two Ministers.  He sought declaratory relief against all defendants and damages against MSD.  Mr Peters was unsuccessful in the High Court.  The Court held that Mr Peters had a reasonable expectation that the payment irregularity would be kept private, particularly from the media.  But his claims against the defendants failed as he could not establish that they were responsible for the disclosure of the payment irregularity to the media.  The disclosures by the Chief Executives to their Ministers were made for a proper purpose.  Mr Peters appeals to this Court against the dismissal of his claims against the two Chief Executives and MSD.  He no longer pursues his claims against the two Ministers. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed to the media?
Held: Yes.  The MSD investigation related to inherently private matters: Mr Peters’ finances and the error in the financial dealings between him and MSD.  In the absence of any allegation of wrongdoing, or any proper basis for such an allegation, the information about the payment irregularity was private information that Mr Peters had a reasonable expectation would not be disclosed to the media or the public. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed within MSD?
Held: No.  It is not the function of tort law to regulate the internal handling, within a government agency, of information lawfully held by that agency.  Liability cannot attach where the disclosure is lawfully made in connection with the performance of the agency’s functions and the recipient is required to keep the information confidential, and use and disclose it only for the agency’s purposes.  A defence of legitimate interest in communication would also apply to such disclosures in the context of the relationship between officials. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed by Mr Boyle or Mr Hughes to their Ministers?
Held:  No.  It is not the function of tort law to regulate what a chief executive can disclose to their Minister in good faith, in connection with the performance of the chief executive’s functions.  The Minister is supported by the department and is accountable for all aspects of its operation that are not required by statute to be performed independently.  The disclosure was made in good faith and in the context of a relationship of trust and confidence.  Mr Boyle and Mr Hughes were entitled to expect their Ministers to keep the information confidential and only use it for proper purposes.  A defence of legitimate interest in communication would also apply to such disclosures in the context of the relationship between senior officials and Ministers. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed by Mr Boyle to Mr Hughes?
Held:  No.  For the same reasons as above, there is no reasonable expectation that the information will not be provided by a chief executive to the States Services Commissioner in good faith, on a confidential basis.  A defence of legitimate interest in communication would also apply to the relationship between officials of this kind. 

Were the claims against the Chief Executives precluded by s 86 of the State Sector Act 1988?
Held:  Yes.  The immunity from liability under s 86 applies to good faith conduct in the (intended) pursuance of a chief executive’s powers.  The evidence that the Chief Executives briefed their Ministers in good faith was not challenged.  The claims against the Chief Executives are barred by s 86. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed by Mr Nichols to Mr McLay?
Held:  No.  Mr McLay’s secondment to the Minister’s office does not put the disclosure to him in a materially different position from the disclosures within MSD.  The communication was made to him in good faith, in connection with the performance of MSD’s functions, which include keeping their Minister and the Minister’s office informed about significant operational matters.  Even if Mr McLay had not been an employee of MSD, communications by MSD to the Minister’s Private Secretary on a confidential basis would be unobjectionable for the same reasons as communications to the Minister direct are unobjectionable.   

Is MSD liable for public disclosures on the basis of res ipsa loquitor?
Held:  No.  It is not necessary for a plaintiff to show that a particular individual within an organisation wrongfully disclosed their private information.  If the evidence suggested that at the time of the media disclosure, the information was only held by MSD employees, the court would be entitled to draw an inference that it must have been a person within MSD who wrongfully disclosed the information.  But by the time the leak to the media occurred, a number of people outside MSD held the information, so there were a number of possible explanations as to how the information was disclosed to the media.  The res ipsa loquitor principle does not enable Mr Peters to establish, on the balance of probabilities, that MSD was the source of the wrongful disclosure.
Case number
[2021] NZCA 353
Date of Judgment
29 July 2021
Appeal by the District Court in CA192/2021 allowed.  Appeal as to costs in CA321/2021 dismissed.  No order as to costs. 

By statute, District Court registrars may grant or vary bail where the prosecutor agrees.  In 2014, the then-Chief Judge of the District Court gave Judge Walker responsibility for leading the District Court response to family violence.  This led to the introduction of Family Violence Bail Reports (FVBRs) in the District Courts at Christchurch and Porirua.  Part of this initiative was a direction by Judge Walker that only judicial officers, not registrars, should grant unopposed bail applications on family violence charges.  A second direction was issued by the Executive Judge at Christchurch, Judge O’Driscoll, that unopposed applications for bail variation should also be decided by Judges, not registrars.  FVBRs have now been implemented nationally.  Mr McDonald faced family violence charges and bail was unopposed.  The requirement his bail be granted by a judge resulted in a delay of 30 minutes.  Mr McDonald sought to judicially review the validity of the directions.  Dunningham J in the High Court declared the directions were unlawful.  The District Court appeals that decision (CA192/2021).  In a separate judgment Dunningham J declined to award Mr McDonald costs.  He appeals that decision (CA321/2021). 

Judicial Review – Illegality.  Whether the Judge erred in finding directions of this type could not lawfully be made. 

Held:  Yes.  Intrinsic to a court are inherent powers enabling the development of procedures as necessary to enable a court to function effectively as a court of judicature.  Where inherent powers arise from and support a statutory jurisdiction, such as that of the District Court, those powers must arise by necessary implication.  Statute may circumscribe inherent powers where there is a clear intention to oust an inherent power.  The broadest realm of inherent judicial power is the court’s power to regulate its own procedures.  As part of this, registrars are subject to judicial direction and supervision.  This extends to an inherent power to review registrar decisions in the absence of a statutory power to do so.
The jurisdiction of District Court registrars lies in statute.  The question is whether those statutes clearly oust the inherent powers of supervision so that the directions would be inconsistent with the statutory framework.  The judges’ powers are not ousted as the legislation is conferring, not limiting.  Neither s 10(3) of the Bail Act 2000 nor s 24(3) of the District Court Act 2016 cover the field.  As to the Chief Judge, s 24(3)(d) provides the Chief Judge may assign judges to cases and duties.  It does not restrict inherent powers of judicial direction, particularly of registrars.  Section 24(3)(g) provides for delegation of administrative duties to individual judges and s 24(3)(i) for the making of directions for best practice and procedure.  Were these powers not expressed, they would be implied.  As to judges generally, nothing in the District Court Act limits their inherent power to supervise registrars.  The fact registrars are given jurisdiction to grant bail does not mean they exercise those powers free of judicial oversight and direction. 

Judicial Review – Illegality. Whether the Judge erred in finding the relevant directions were unlawful. 

Held:  Yes.  The first direction is one within the power of any District Court judge.  There is one District Court so any judge may direct one or all registrars.  The first direction here would be expected to be made by the Chief Judge or with his or her delegated authority.  But if there is a disagreement between judges about the direction that is for the Chief Judge to resolve.  The direction was in substance little different to the allocation of different responsibilities between judges and not inconsistent with the statutory framework.  The Chief Judge delegated authority to lead the District Court response to family violence to Judge Walker.  The direction could be made under Judge Walker’s inherent power or by delegated authority.  It is unnecessary and inappropriate to examine the internal arrangements between the Chief Judge and Judge Walker.  The second direction was clearly within the purview of an executive or list judge to make. 

Practice and Procedure – Costs.  Whether the Judge erred in refusing to award Mr McDonald costs. 

Held:  No.  Given the result in the principal appeal, Mr McDonald’s costs appeal is dismissed.
Case number
[2021] NZCA 347
Date of Judgment
28 July 2021
Appeal against finding of vicarious liability (CA141/2020) dismissed.  Appeal against declining application for permanent name suppression (CA252/20200) dismissed.  Costs lie where they fall. 

Drs Ryan and Sparks are GPs operating from premises called Moore Street Medical Centre. The premises are owned by a company of which they are the (indirect) shareholders and directors.  The Medical Centre is not an incorporated entity and Drs Ryan and Sparks have no written partnership agreement.  The Medical Centre employs nursing and administrative staff and locum doctors, purchases equipment and has a shared patient file management system.  The Medical Centre has a shared account for these purposes into which patient fees from nurse and locum doctor appointments are paid and Drs Ryan and Sparks contribute weekly.  The Medical Centre also has its own protocols and policies.  Drs Ryan and Sparks have separate patients and separate bank accounts into which their patients pay fees.  If one of their patients sees the other doctor, that doctor will invoice the other.  Drs Ryan and Sparks have different, individual IRD and individual GST numbers and complete their own tax returns.  A patient of Dr Ryan had an appointment with Dr Sparks during which Dr Sparks wrongly prescribed the patient with medication to which they later had an allergic reaction.  Following a complaint, the Health and Disability Commissioner found Dr Sparks breached the Code of Health and Disability Consumers’ Rights.  The Commissioner also held the Medical Centre and Dr Ryan were vicariously liable for that breach under s 72 of the Health and Disability Commissioner Act 1994.  Dr Ryan sought to judicially review that finding, as well as applying for permanent name suppression.  The High Court denied both applications in two separate judgments.  Dr Ryan appeals both judgments. 

Medicine, Pharmacy and Related Professions – Medical practitioners.  Whether the Judge erred in finding Dr Ryan can be vicariously liable under s 72 of the Health and Disability Commissioner Act for the conduct of Dr Sparks? 

Held:  No.  Section 72 creates three categories of actor whose acts or omissions may render their employing authority vicariously liable:  employees, agents and members.  The defence in s 72(5) only applies to the employee category in s 72(2).  Only s 72(2) is expressed as subject to s 72(5) and the wording of s 72(5) itself refers throughout to only employees.  Unlike the test of liability for members and agents, the test of liability for employees’ actions is not dependent on questions of authority.  It makes sense for there to be a special defence for the employee category.
As to the agency category, liability depends on whether the wrongdoing has been done with the express or implied authority of the employing authority.  At common law express or implied actual authority renders the principal personally and not vicariously liable for the agent’s conduct.  “Implied authority” should be interpreted following Proceedings Commissioner v Hatem as extending to conduct where the wrongdoer was acting in the ordinary course of the firm’s business.  Relevant factors will be the nature of the wrongful activity, what temporal connection it had to the firm’s business and whether that business provided the opportunity for the commission of the wrong.  Policy issues are also relevant.  Though Hatem concerns s 33(2) of the Human Rights Commission Act 1977, the textual differences with s 72 are largely immaterial.
The “member” category is unique to s 72.  The legislative history to the Health and Disability Commissioner Act suggests it was intended to be a wider, more general term than agent or employee and include wrongdoers who do not fit within either of the other two categories which are legal terms.  In the High Court, the judge held that “member” should be interpreted “in the common sense way as meaning someone belonging in some sense to the Medical Centre and delivering medical services.” The panel considered that interpretation was too imprecise and unduly expansive. “Member” while not an agent or employee must be a person whose status in relation to the employing authority is such that it justifies the presumption that what they do or omit to do is done with the authority of that employing authority. It must a status closely allied to those concepts. In the absence of agency or employment that is likely to involve someone who is closely associated or identified with the employing authority.
The Medical Centre is an employing authority under s 72.  Mr Sparks is not an employee of the Medical Centre.  As to agency, partnership is the most coherent path.  The Medical Centre is a partnership between Drs Ryan and Sparks meaning each doctor is the agent of the other and the Medical Centre.  But nothing prevents people being in a partnership for one purpose but not another.  When consulting with their respective patients, Drs Sparks and Ryan are likely not each other’s partner but separate business entities.  Each doctor is paid separately for consultations.  They do not share losses.  If one of the doctors were to see fewer patients so as to make a loss, there is no suggestion the other or the firm the Medical Centre would share in that loss as opposed to the position that pertains to the profits and losses of the Medical Centre.  Policy considerations do not of themselves convert Dr Sparks into acting as the agent of the Medical Centre when he does not at common law.
But Dr Sparks is clearly a member of the Medical Centre. He along with Dr Ryan is the person most closely identified or associated with it. He was to all intents and purposes in charge and would have been perceived by patients and the general public in that light.  Nothing in s 72 prevents him acting both in business on his own account and also as a member of the Medical Centre.  When seeing the patient he was acting within the scope of his authority as a member of the Medical Centre.  One GP may have little direct control over another GP when treating a patient.  But the Medical Centre has a level of control over Dr Sparks when he sees patients as shown by the review it conducted following the complaint and the changes it made to its policies including extending the duration of appointment times.  This and the Medical Centre’s policies mean Dr Sparks does not have full autonomy when examining patients and the facts are far removed from the analogy to a set of barristers’ chambers. 

Practice and Procedure – Name suppression.  Whether the Judge erred in declining the application for permanent name suppression of Drs Ryan and Sparks and the Medical Centre’s names and identifying particulars? 

Held:  No.  That names are usually redacted in the Commissioner’s reports does not mean names should be suppressed in these proceedings.  Embarrassing or unwelcome publicity is insufficient for non-publication or confidentiality orders.   Specific adverse consequences must be shown and the standard is a high one.  The evidence is of general and speculative reputational harm and not specific adverse consequences.  The judgment makes it clear Dr Ryan was not personally at fault and that he and the Medical Centre took a responsible approach in responding to the complaint.
Case number
[2021] NZCA 321
Date of Judgment
15 July 2021
Appeal allowed.  
Judicial Review — Education and Training Act 2020. 

The appellant, who lives outside the home zone prescribed in the enrolment scheme for Smith Primary School, applied to enrol there.  She was offered a place at the School in accordance with the predecessor of s 74(2)(a) of the Education and Training Act 2020, she having priority because her older sister is already a student there.  This offer was accepted.  However, due to unexpected numbers of home zone enrolments with overcrowding consequences, several months later this offer was withdrawn.  The appellant unsuccessfully applied for judicial review of the withdrawal decision. 

Appeal allowed.  The purported withdrawal of the appellant’s place at Smith Primary School was unlawful.  The offer letter remains valid, and the appellant is entitled to enrol at the School in accordance with ss 33 and 74(2)(a) of the Education and Training Act 2020 on Monday 26 July 2021 or on such later date as may be agreed by the appellant’s parents and the School.
Case name
Case number
[2021] NZCA 318
Date of Judgment
14 July 2021
Appeal against sentence allowed. 
Criminal law. Murder. Sentence. 

The defendant spent her life raising difficult children and grandchildren. Over time, the defendant developed depression and carer burnout.  One day, the defendant had an argument with her 13-year-old granddaughter, which ended with her murdering the granddaughter by strangling her with a necktie. Under s 102 of the Sentencing Act 2002, a defendant convicted of murder must be sentenced to life imprisonment unless, given the circumstances of the offence and the offender, it would be manifestly unjust. The High Court held that life imprisonment would be manifestly unjust because the defendant was a caring grandmother who suffered from mental health problems and showed profound remorse. The High Court sentenced the defendant to 12 years’ imprisonment with a six-year MPI. The Solicitor-General appealed against the sentence on the grounds that life imprisonment would not have been manifestly unjust. 

Whether a 17-year MPI under s 104 of the Sentencing Act would be manifestly unjust? Held: Yes. Under s 104 of the Sentencing Act, if a defendant is convicted of murder and certain aggravating circumstances apply, then a 17-year MPI must be imposed.  One aggravating circumstance is where the victim is particularly vulnerable.  In this case, the victim was particularly vulnerable, but a 17-year MPI would be manifestly unjust.  The defendant suffered from mental health problems, was not a risk to others and showed profound remorse.  The need for accountability, denunciation and deterrence could be achieved by a 10-year MPI. 

Whether life imprisonment under s 102 of the Sentencing Act would be manifestly unjust? Held: No. Under s 102, there was a strong presumption of life imprisonment. Whether life imprisonment would be manifestly unjust also had to be assessed with both the circumstances of the offence and the offender. If one of the aggravating circumstances under s 104 applied, then it would be even rarer for life imprisonment to be manifestly unjust. In this case, the High Court focused on the circumstances of the offender, but the circumstances of the offending meant that life imprisonment would not be manifestly unjust. The victim was vulnerable, the murder involved a gross breach of trust, and the method of killing would have been terrifying. The defendant’s sentence was substituted with a sentence of life imprisonment with a 10-year MPI
Case number
[2021] NZCA 310
Date of Judgment
12 July 2021
Messrs Ortmann and van der Kolk’s application to adduce further evidence declined.  Mr Dotcom’s application for orders enforcing requests made under the Privacy Act 1993 is declined.  There are no issues raised in the judicial review appeals not addressed in our 5 July 2018 judgment and appeals in CA127/2017 and CA128/2017 remitted by the Supreme Court are dismissed.  Order the first and second appellants in CA127/2017 and the appellant in CA128/2017 are jointly and severally liable to pay the first respondent one set of costs calculated on the basis of a standard appeal on a band A basis together with usual disbursements.  We certify for two counsel.  No award of costs in relation to various interlocutory applications but order that the first and second appellants in CA127/2017 and the appellant in CA128/2017 pay the first respondent any disbursements relating to those applications. 

The United States has been seeking to extradite Messrs Dotcom, Ortmann and van der Kolk since 2012.  Following a 2015 District Court decision finding them to be eligible for extradition and dismissing applications for stays of proceedings and an unsuccessful appeal and judicial review proceeding in the High Court in 2017, the appellants appealed to this Court.  In a judgment of 5 July 2018 this Court dismissed the appellants’ appeals on two questions of law, refused leave to appeal on various other questions of law, and dismissed the appellants’ two judicial review proceedings as an abuse of process.  The appellants appealed to the Supreme Court.  On further appeal to the Supreme Court, in 2020, the Supreme Court dismissed all bar one aspect of the appeals to it under the Extradition Act 1999 but allowed the appeals against this court’s dismissal of the judicial review appeals.  The Supreme Court ordered the judicial review appeals be remitted to this Court so this Court may determine what issues were outstanding in relation to the judicial review appeals (being issues which had not been addressed as part of the appeals under the Extradition Act) and resolve those outstanding issues.  Prior to the hearing to determine these matters, this Court declined an application by the appellants for a new bench. 

Practice and Procedure – Recusal.  Whether the remitted appeals should be heard by a fresh panel given this panel’s prior involvement. 

Held:  No.  The purpose of the remitted proceeding was to establish whether there were outstanding matters rather than relitigating matters already addressed on the merits.  A fair minded observer would consider that the 2018 panel was the logical and fair choice. 

Privacy Act – Enforcement.  Whether Mr Dotcom’s application for enforcement of Privacy Act 1993 requests should be granted.

Held:  No.  The application for enforcement of Privacy Act requests relates to a different proceeding involving different parties and is declined for want of jurisdiction. 

Practice and Procedure – Fresh evidence.  Whether Messrs Ortmann and van der Kolk’s application to adduce fresh evidence should be granted. 

Held:  No.  The proposed evidence is not relevant or substantially helpful.  The evidence sought to be adduced is for trial, not extradition proceedings in this country. 

Practice and Procedure – Outstanding issues.  Whether there are any outstanding issues from the remitted judicial review appeals not addressed as part of the case stated appeals under the Extradition Act. 

Held:  No.  Case stated appeals are conceptually different from judicial review but the context in this case, extradition proceedings involving a Record of Case, is all important. 

Whether there was a breach of natural justice due to the failure to undertake the required meaningful assessment as to whether there is a prima facie case against the appellants is not an outstanding issue.  The High Court accepted the District Court erred in some respects but undertook a fresh and comprehensive assessment of the evidence and concluded a prima facie case was established on each count.  On appeal, this Court summarised the evidence in the ROC and addressed the substance of all the appellants’ challenges to that finding in refusing special leave to appeal – a merits-based assessment.  The Supreme Court did not find this Court applied the wrong test for sufficiency.  The High Court wrongly eschewed a double criminality requirement but assessed the evidence for counts 1, 2 and 4–13 against New Zealand offences identified by the Supreme Court as available extradition pathways.  The Supreme Court did find existence of copyright cannot be assumed but also considered the evidence tendered satisfied this requirement, as it also did in respect of s 131 of the Copyright Act 1994.  The Supreme Court has also found the inference as to knowledge the United States seeks to draw are available and the safe harbour provisions in the Copyright Act do not apply. 

Whether there was a breach of natural justice arising from the High Court’s refusal to allow further evidence is also not an outstanding issue.  In this Court’s 2018 judgment it refused to receive further evidence in the context of the application for leave to appeal the refusal of the funding stay application which was characterised as a natural justice issue.  This Court conducted a merits-based assessment. 

Whether there was a breach of natural justice arising from the refusal to grant the funding stay is also not an outstanding issue.  This was considered in the 2018 judgment and rejected on its merits.  Mr Dotcom’s ability to mount a defence if surrendered to the United States is a new argument not raised in 2018. 

Whether there was breach of natural justice arising from alleged misconduct on the part of the authorities is also not an outstanding issue.  The handling of Mr Dotcom’s Privacy Act requests was addressed.  To the extent it was not, the conduct occurred after the 2018 judgment. 

The innominate ground of review is also not an outstanding issue.  It was never advanced orally at the 2018 hearing and is parasitic on the other grounds of review that are not outstanding issues.
Case number
[2021] NZCA 303
Date of Judgment
09 July 2021
CONTRACT - Damages - Fair Trading Act 1986.
Appeal dismissed.
Cross-appeal allowed in part.

In February 2014, Mr Roberts entered into a conditional agreement to purchase an apartment at the Sirocco Apartments in Wellington. It transpired post-settlement that Sirocco suffered from serious weathertightness defects. In declaring the agreement unconditional, Mr Roberts relied on statements made by Ms Leloir, the body corporate secretary, to the effect that Sirocco had experienced weathertightness issues, but these related only to the walkways and had since been rectified. The High Court found that these representations were false and misleading in breach of ss 9 and 14 of the Fair Trading Act 1986 (the Act).  In  a  subsequent  quantum  judgment,  the  Judge  awarded  damages  to Mr Roberts pursuant to s 43 of the Act in the sum of $110,000 (less a 15 per cent reduction for contributory negligence for failing to obtain a pre-purchase building report and copies of the body corporate committee minutes), plus general damages of $25,000 for stress and inconvenience. The special damages were assessed by comparing the purchase price with the market value of the apartment if it had been properly described at the date the misleading statements were made in March 2014.

Both parties now appeal against the quantum judgment. Mr Roberts contends the damages should have been assessed at the date of the quantum hearing in late November 2019 by comparing the value of the apartment if Sirocco had been constructed without defects and its actual market value at that date in its unremediated state. He says the Judge should also have compensated him for  his share of special levies raised to assess the damage at Sirocco and costs, not yet incurred, of moving to alternative accommodation. He also argues the Judge should not have made any reduction for contributory negligence. Ms Leloir cross-appeals on the basis that Mr Roberts suffered no loss given comparable apartments in Sirocco sold for similar prices in 2014, including sales that took place after Mr Roberts purchased his apartment. To the extent any damages are awarded, Ms Leloir argues the reduction for contributory negligence should have been 40 per cent, not 15 per cent. 

Issue: Did the Judge err in her assessment of damages prior to any reduction being made for contributory negligence?Held: No. Mr Roberts was not entitled to the expectation losses he claimed. The Judge was correct to assess the loss in accordance with the normal measure at the date of the breach. There was no error in the Judge's assessment of the loss applying this test. The Judge was also correct not to award recovery of the special levies, estimated moving costs and conveyancing costs on a hypothetical resale. None of these costs had been incurred, seven years after the purchase. 

Issue: Was the Judge wrong to reduce the damages for contributory negligence?Held: No. The Judge was correct to find that a prudent purchaser would have obtained a pre-purchase inspection report from a suitably qualified specialist and this would have identified weathertightness issues at Sirocco. The Judge was also justified in finding that a prudent purchaser would have made further enquiry by seeking the body corporate committee minutes. 

Issue: Was a reduction of 15 per cent sufficient to recognise the contributory negligence?Held: No. Mr Roberts' contribution to his own loss was understated at only 15 per cent.  He was aware  of the leaky building crisis in general terms and wished to protect himself from that risk. Mr Roberts' failure to obtain a building report was both negligent and causally potent. His additional failure to request copies of the body corporate minutes was less causally potent but should nevertheless weigh in the balance. In all the circumstances, a 40 per cent reduction for contributory negligence would deliver a just outcome between the parties.
Case number
[2021] NZCA 295
Date of Judgment
05 July 2021
Appeal dismissed.   
The parties are two brothers who are boatbuilders. They own the land on which their boatyard business was built as tenants in common in equal shares. They dissolved their partnership over 25 years ago and cannot agree on what should be done with the land. The appellant applied to the High Court under s 339 of the Property Law Act for an order that the land be partitioned and sold, or alternatively that the land be sold as a whole at public auction. The High Court ordered the latter. The appellant appealed. 
Property Law — Rights of owner or occupier. Whether the Judge erred by ordering sale of property under s 339(1)(a) of the Property Law Act 2007.  
Held: No. The making of orders under s 339 is a matter of discretion and will not be disturbed unless it can be shown that the judge made an error of law or principle, failed to consider a relevant matter, took into account an irrelevant matter, or was otherwise plainly wrong. The Judge not err as the order that the land be sold at public auction was orthodox and supported by the appellant’s own application. Moreover, the evidence did not support the appellant’s contention that the sale would cause him extreme hardship from having to relocate the business.
Case name
Case number
[2020] NZCA 657
Date of Judgment
18 December 2020