Court of Appeal Judgments of Public Interest

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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 number
[2021] NZCA 252
Date of Judgment
18 June 2021
Application to adduce fresh evidence on appeal granted.  Appeal against conviction and sentence dismissed.
Criminal law – Discharge without conviction
Criminal practice and procedure – Conviction appeal – Sentence appeal
Immigration – Deportation liability

Mr Sok pleaded guilty to one charge of injuring a baby with reckless disregard for the baby’s safety.  He was denied a discharge without conviction.  He appeals against that decision, principally because he will likely face deportation to his native Cambodia.  Mr Sok initially entered New Zealand on a visitor’s visa and applied for another visa on a partnership basis.  His visitor visa expired on 1 December 2020.  On 12 March 2021, his application for a partnership visa was declined on the basis that his offending prevented him from meeting the good character requirement.
Was the District Court wrong to characterise the offending as serious?  Held:  No.  The evidence suggested Mr Sok had shaken the baby.  The most lenient view is that he suffered a momentary loss of control when dealing with an unsettled baby and responding by shaking him.  The baby’s injuries were severe and he requires intensive ongoing rehabilitation.  Mr Sok remained reluctant to accept responsibility.  Against that, the incident was driven by stress and was a one-off occurrence.  The appellant pleaded guilty and engaged in restorative justice.  He could point to otherwise good character.  The District Court was plainly right to characterise the offending as serious.  Several aggravating factors in s 9A of the Sentencing Act 2002 were present (defencelessness, harm and breach of trust).
Would Mr Sok’s deportation be a consequence of his conviction?  Held:  No.  The Sentencing Act allows the Court to consider the “direct and indirect” consequences of conviction.  The language of indirect causation signifies that the jurisdiction to discharge extends to cases where the happening of a given consequence may require some intervening event or action, such as the decision of a third party in which the conviction is relevant.  However, but-for causation is not necessarily sufficient.  Courts have often accepted that where the immigration process allows the offender to be heard on mitigating and personal circumstances, deportation would be the outcome of the offending, not the conviction.
In Mr Sok’s case, the fact he was declined a character waiver was a consequence of his offending, not conviction.  The immigration officer did not base their decision on the maximum sentence associated with the offence and the District Court decision was not treated as conclusive evidence of bad character.  The officer examined the merits, traversing the circumstances of the offence in detail and discussing the mitigating circumstances.  Nor would a discharge assist Mr Sok in obtaining an offshore visa;  he would still have to pass the character test and INZ may consider conduct that resulted in a discharge.  A discharge would not assist him in obtaining a visa from the Minister under s 61.
Are the consequences of the offending out of all proportion to the gravity of the offence?  Held:  No.  The offending was serious, involving grave and potentially lifelong harm to a vulnerable victim, although there are mitigating factors.  This is not a case where liability to deportation would be a wholly disproportionate consequence of conviction.  Mr Sok’s risk of deportation is not a consequence of the conviction, but of his offending.  A discharge would not materially reduce the risk of deportation.  Nor could Mr Sok point to any appreciable risk to his employment or travel prospects.
Case number
[2021] NZCA 237
Date of Judgment
08 June 2021
Appeal against Beddoe orders allowed in part.

Bill Snr, the appellant's father, settled the WF McCallum Trust (the Old Trust) in 1986.  Its trustees were Bill Snr and his brother, Robert.  In 2016, Bill Snr settled the McCallum FAmily Trust (the New Trust).  Its trustees were Bill Snr, his nephew, Callum, and Robert.  The appellant is a beneficiary of both Trusts.

From 2016, a series of transactions occurred involving both Trusts and Bill Snr's separate property.  Assets were exchanged between Bill Snr and the Old Trust, transferred from Bill Snr to Robert and to Callum's family trust, and transferred from Bill Snr to the New Trust.  Bill Snr died in January 2017.  In November 2017, the remaining assets of the Old Trust were resettled on to the New Trust.

The appellant disputed the propriety of these transactions and brought proceedings against Robert and Callum in their capacities as trustees of both Trusts, as executors of Bill Snr's estate, and personally.

In March 2019, Robert and Callum applied to the High Court for Beddoe orders, seeking the Court's directions to defend the proceedings and indemnification for their costs from the funds of the New Trust.  The High Court granted a Beddoe order for Robert and Callum to defend the second cause of action pleaded, and partial Beddoe orders on the third, fourth, seventh and eight causes of action.  The appellant appealed.

Equity — Trusts.  Practice and procedure — Costs.  Whether the appeal against the making of Beddoe orders ought to be allowed.
Held: Yes.  Beddoe orders may be sought to confirm pre-emptively the propriety of trustees bringing or defending proceedings, and to confirm the trustees' entitlement to indemnity for costs to be paid out of the trust's funds.  Whether a Beddoe application is granted must be assessed against what is in the trust's best interests.  Beddoe applications will seldom be granted where litigation is "hostile", that is, when it alleges wrongdoing by the trustees, but the overriding consideration is the best interests of the trust.

The Beddoe order justification has a long and secure lineage and should be retained in New Zealand.  The Beddoe orders made here did not breach natural justice; the procedure followed was one which all counsel had acceded in advance.

Here it was in the best interests of the beneficiaries of the New Trust that the second cause of action be defended, because the effect of the claim, if successful, would be to diminish the assets of the Trust.  The indemnity can only extend to reasonable and proper costs attributable to the Trust's defence.  The same reasons applied in respect of the third and eighth causes of action.

However, Beddoe orders should not have been granted on the fourth cause of action, which is brought against the respondents in their personal capacities.  Beddoe orders should also not have been granted on the seventh cause of action, which seeks the removal of the respondents as executors of Bill Snr's estate, and trustees of both Trusts.  A trustee challenged on this basis cannot expect a pre-emptive costs indemnity via a Beddoe order.
Case name
Case number
[2021] NZCA 234
Date of Judgment
04 June 2021
Mr Webby appeals his sentence of life imprisonment with a minimum non-parole period (MPI) of 17 years and nine months for a charge of murder, arson, attempting to pervert the course of justice and two charges of aggravated robbery.  He says the Judge erred in failing to apply the three-step approach identified in R v Williams when determining his MPI, with the result that his sentence is manifestly unjust.   

Held: Appeal dismissed.  This Court has previously acknowledged that it is unobjectionable in some circumstances for a Judge to sentence for murder without expressly adopting the R v Williams three-step approach, provided the sentence is consistent with sentencing purposes and principles and comparator cases.  The Court was satisfied that was the case with the MPI imposed by the Judge in this instance.
Case number
[2021] NZCA 227
Date of Judgment
03 June 2021
Tort - nuisance, Rylands v Fletcher
The appellants (collectively "Nottingham Forest") owned and operated a forest containing some 30,000 trees. The respondent (Unison) owned power lines that ran through and predated the forest. The trees grew to a height greater than their distance from the lines. In December 2010 and July 2011, trees fell on the 33kV line (the line), and in April 2012 and January and November 2014, trees fell on another line. Unison filed proceedings in relation to three "strikes", involving trees falling on and causing damage to the line in September 2015, July 2016 and August 2016. A fourth strike causing damage and power outages while repairs were carried out occurred in September 2018, after proceedings were filed. The trees fell as a result of "root plate failure" and were otherwise healthy. Individual tree falls could not be predicted. 

The High Court found Nottingham Forest liable under Rylands v Fletcher, as the individual tree falls were characterised as "one-off'' escapes of dangerous things from land. Nottingham Forest was also held liable in nuisance, as the physical damage caused by the falling trees constituted an ongoing, substantial and unreasonable interference with Unison's interest in the lines.  It was also arguable that a well-founded fear of falling trees itself constituted a nuisance. However, the Judge declined to order an injunction requiring the trees in question to be cut down. She did not consider it necessary to consider negligence, which had also been advanced. 

Nottingham Forest appealed the Judge's finding of liability in Rylands v Fletcher and nuisance. Unison cross-appealed the Judge's refusal to grant an injunction and also argued that Nottingham Forest was liable in negligence. As the trees had been cut down by the time the appeal was heard, the part of the cross-appeal seeking injunctive relief was not pursued. 

Held  appeal and cross-appeal dismissed.   An actionable nuisance was established. The recurring tree falls caused ongoing and substantial physical damage to Unison's property. That of itself was sufficient to establish that the ongoing inference was "unreasonable".  Given the inevitability of tree falls following bad weather conditions it was unreasonable for Nottingham Forest to grow the trees to a height at which they would cause physical damage to Unison's line if they fell.  Nottingham Forest was liable to pay damages in nuisance, as the type of harm that was caused by the tree falls was undoubtedly reasonably foreseeable. 

Rylands v Fletcher was not established. The planting and growing of trees could not be seen as anything other than an ordinary use of rural land. It was not a special use bringing increased danger to others. Further, trees when planted are not dangerous. It was only when the trees grew above a certain height that they posed a danger because of their proximity to the line. Whether an activity is an "ordinary" use of the land cannot depend on such fine distinctions. 

Given those findings it was not necessary to address negligence.
Case name
Case number
[2021] NZCA 214
Date of Judgment
28 May 2021
Application for leave to appeal a question of law is granted.
The answer to the two questions of law set out at [6] is yes.
The Court declines to order a re-sentencing of the respondent. 

Criminal Law: Sentence — minimum period of imprisonment, three strikes regime.
Practice and Procedure — Appeal on a question of law, Solicitor-General reference. 

In the High Court, the Judge held both an oral warning and a formal written notice were required before a warning was operative under ss 86B to 86D of the Sentencing Act 2002 — colloquially known as the “three strikes regime”.  The Judge further held there was insufficient evidence of both of these requirements having been satisfied in this case and therefore the Judge did not have jurisdiction to sentence the respondent on the basis that he was subject to previous warnings.   

The Crown sought leave to appeal on a question of law under s 296(3)(a) of the Criminal Procedure Act 2011 (CPA) which was granted.  Pursuant to s 299 of the CPA the Court rephrased the questions of law as follows: 
Does the giving of a warning under s 86B or s 86C of the Sentencing Act 2002 require only an oral warning which is then duly recorded? Held: yes.  The scheme of the provision is that the giving of the warning and the recording of that warning must happen at the same time.  Subsection 3 of both provisions makes clear that it is at that point that the offender has a record of first or final warning as the case may be.  Such warning is effected by the Judge recording on the charging document that the warning has been given.  A permanent record of this is created when this information is entered into the Ministry’s Case Management System (CMS) system which can then be generated in an offender’s criminal and traffic history.  This CMS record will generally be sufficient evidence that the oral warning was given as CMS is designed to reflect the permanent court record and has been developed with business rules to ensure accuracy and compliance with legislation. 

The written notice of consequences as provided for by s 86B(4) and s 86C(7) is mandatory but failure to comply with these subsections does not in itself invalidate the warning or make the warning incomplete.  Despite important reasons for requiring a notice of consequences, if Parliament intended failure to provide the written notice of consequences to invalidate the warning, they would have used clearer words to link the notice to the record of warning.  The two are deliberately separated and distinct. 

It is acknowledged that during the passage of the legislation in the House, Parliamentarians explained that offenders would be warned both verbally and in writing.  However, any significance that might be attached to those statements is far outweighed by the text and other aspects of legislative history.  When the Bill was first introduced to the House no written notice provision existed.  The requirement for a written notice was included following a Departmental Report provided by the New Zealand Police.  The Report explained that when the court makes an order relating to an offender, it is usual practice to provide an offender with something in writing outlining what had just happened.  The supplementary order paper that followed made clear that such inclusion of a written notice was not to be described as a “notice of warning” but a “notice of written consequences of first warning”.  Importantly, that indicates it is a notice dealing with something that has already been effected or completed. 

If so was the Judge’s decision to treat Mr Muraahi as a stage-1 offender s 86B of the Sentencing Act made in error? Held: yes.  The Judge was not correct to hold that both an oral warning and the written notice of consequences are components of the warning under the three strikes regime.  As such Mr Muraahi should have been sentenced as a stage-3 offender under the Act.  However, the Court declines to use its discretion under s 180 of the CPA to correct the erroneous sentence.  Mr Muraahi’s sentence was only one year less than the maximum sentence available for aggravated robbery as it was.  The Crown did not strongly advocate for a re‑sentencing.   

NB Additional documentation obtained for the purposes of the appeal hearing establishes that even if Peters J’s approach had been correct in law, there was on the facts of this case sufficient evidence.
Case number
[2021] NZCA 211
Date of Judgment
27 May 2021
Appeal dismissed. Accident Compensation — personal injury — mesothelioma. 

Ms Trevarthen developed mesothelioma from contact as a young girl with her father whose work likely involved high exposure to asbestos.  ACC, a reviewer and the District Court determined she did not have cover under the Accident Compensation Act 2001.  This was overturned on appeal to the High Court, where Mallon J held that Ms Trevarthen was entitled to cover under the 2001 Act because her mesothelioma was a personal injury caused by an accident to her (the inhalation of asbestos).  She found that Ms Trevarthen was not barred by s 26(2) which excludes from cover a personal injury caused wholly or substantially by a disease unless it is of the kind described in s 20(2)(e) to (h).  ACC has appealed that decision on a question of law. 

Does mesothelioma, not caused by a work-related exposure to asbestos, amount to a “personal injury” under s 26 of the Act?  Held:  Yes. ACC submitted that the parameters for cover of non work-related disease have changed over time, and there is no longer a simple distinction between idiopathic disease and disease with an external cause.  Now, the only cover available is under s 20(2)(g) for disease caused by a personal injury for which the person has cover.  This narrowing was said to have originated in the 1992 Act.  However, under that Act cover remained available for a personal injury which was caused by an accident and not caused wholly or substantially by a disease. Section 20(2)(g) does not have the effect of excluding cover otherwise available under s 20(2)(a) for personal injury caused by accident.  There is nothing in the drafting history showing that the specific instances in s 20(2)(e) to (h) should be used to read down other instances of personal injury within s 20(2).  The various routes to cover should be viewed as expansive, not reductive.  

ACC also makes the argument that personal injury is tangible harm caused to the body.  The accidental inhalation of asbestos caused the disease (mesothelioma).  But ACC argued that it was the disease, not the accident, that caused the personal injury (the physical manifestations such as pleural effusion, tumours and death).  Mallon J was correct to reject this reasoning.  It is artificial to draw a distinction between being inflicted with a disease and experiencing the physical manifestations of the disease.  Such an approach does not mean all diseases have cover. And it is consistent with the statutory scheme.
Media Release
Media Release (PDF, 133 KB)
Case number
[2021] NZCA 177
Date of Judgment
13 May 2021
Case name
Case number
[2021] NZCA 172
Date of Judgment
10 May 2021
Application for leave to appeal against conviction declined. 

Criminal Law. Murder. Severance. Summing up. Leave to Appeal. Evidence. Admissibility.

In 1988, two men robbed a motel, and one shot the owner. Mr Waa and Mr Cullen were charged with the owner's murder. Mr Cullen confessed to robbing the motel with Mr Waa, and he claimed Mr Waa shot the owner. Mr Waa was also seen with Mr Cullen on the day, his footprint was found in the motel, and a prison informant Witness A claimed that Mr Waa confessed to the murder and said it was to find krugerands. During the trial, Mr Waa's counsel also asked Witness A if Mr Waa had confessed to another murder at the Red Fox Tavern, and Witness A said he did. Mr Waa was convicted. Mr Waa then filed an appeal/application for leave to appeal against his conviction, which was declined under an "ex parte procedure". In 2002, the Privy Council held that the "ex parte procedure" was unlawful, and in 2003, this Court held that it had inherent jurisdiction to rehear appeals/applications for leave to appeal that were declined under the "ex parte procedure". In 2018, Mr Waa filed another appeal/application for leave to appeal against conviction. Mr Waa argued the judge erred on severance, Witness A's evidence and the Red Fox Tavern murder reference. 

Whether leave to appeal was required?
Held: Yes. Under s 383 of the Crimes Act, leave was not required for appeals on questions of law. Whether the judge misdirected himself on the legal test or misdirected the jury were questions of law. However, Mr Waa was asking the Court to use its inherent jurisdiction, which should only be used if it could lead to a different outcome. Leave should be required and should only be granted if the appeal was reasonably arguable. 

Whether it was reasonably arguable the judge erred on severance?
Held: No. At the time, defendants would be tried together if there was evidence of a common enterprise. An exception was if there was evidence against one defendant that was inadmissible against the other defendant, and the inadmissible evidence against that other defendant was out of proportion to the admissible evidence against them. This was a case where two men robbed a motel, and Mr Waa being with Mr Cullen on the day and his footprint at the motel justified trying them together. Mr Cullen's confessions were inadmissible against Mr Waa, but they were not out of proportion to the admissible evidence against Mr Waa, and the judge adequately directed the jury to not consider Mr Cullen's confessions against Mr Waa. 

Whether it was reasonably arguable the judge erred on Witness A's evidence?
Held: No. Prison informant evidence was admissible where the probative value outweighed the unfair prejudice. Witness A may have been incentivised to give evidence because he was hoping to get a sentence reduction, but this was obvious at trial. Witness A's claim that the robbery was to find krugerands lacked corroboration, but this was also pointed out at trial. Witness A had given evidence in the trial of David Tamihere that later turned out to be false, but David Tamihere fed false stories to prison informants, and Witness A was only passing on what he was told rather than claiming it was true. Witness A made a false allegation in prison and used a false passport, but this did not seriously undermine his credibility in Mr Waa's trial. The judge adequately directed the jury on Witness A's evidence. 

Whether it was reasonably arguable the judge erred on the Red Fox Tavern murder reference?
Held: No. Mr Waa was not suspected of the Red Fox Tavern murder. Mr Waa's counsel referred to the Red Fox Tavern murder sarcastically to portray Witness A as willing to accuse Mr Waa of crimes he was not suspected of. The judge did not need to give a jury direction on the Red Fox Tavern murder reference.
Case number
[2021] NZCA 170
Date of Judgment
06 May 2021
Appeal against convictions allowed.  Convictions quashed.  No order for a new trial. 
In 1988 the appellant was convicted of kidnapping four children and doing an indecent act, after a jury trial.  In 2008 the jury foreman, Juror A, contacted the appellant’s counsel to say he had received information during the appellant’s trial that linked the appellant to another crime, the murder of 6-year-old Teresa Cormack in 1987, and that he had passed this information on to other jurors before their deliberations.
In 2018 the Governor-General referred the appellant’s convictions to the Court of Appeal under s 406(1)(a) of the Crimes Act 1961 on the basis that this new evidence could suggest that a miscarriage of justice had occurred.  A subsequent inquiry was conducted under s 335 of the Criminal Procedure Act 2011 to contact the other jurors to ask them if they received any information from Juror A that was not in evidence at trial, and if so what that information was.  Six jurors responded to the inquiry and Juror A was summonsed to give evidence on the reference.Criminal law — unsafe verdict.  Criminal practice and procedure — juror misconduct.  Practice and procedure — bias.  Whether the information linking the appellant to another crime being before the jury meant his verdicts were unsafe such that a miscarriage of justice occurred. Held:  Yes.  Juror A was an honest and reliable witness.  His evidence was that he received the information, which was highly prejudicial, and transmitted it to other jurors before the verdicts were reached.  A fair-minded lay observer acquainted with the factual background would likely conclude a realistic possibility that such a jury was no longer independent and impartial.  The jury’s receipt of the extraneous evidence gave rise to apparent bias.  Accordingly, the appellant’s verdicts were unsafe and must be set aside.

Criminal practice and procedure — Judicial directions.
Held:  The practice adopted in other jurisdictions for Judges to direct jurors to disclose any receipt of extraneous information should now be adopted in New Zealand.
Case number
[2021] NZCA 156
Date of Judgment
04 May 2021
Appeal dismissed.  Appellant to pay respondent costs for standard appeal on band A basis with usual disbursements. 

Mr Craig’s relationship with his previous press secretary Ms MacGregor was previously the subject of defamation proceedings in Craig v Slater.  In an appeal in that proceeding this Court upheld Toogood J’s finding that Mr Craig had engaged in moderately serious sexual harassment of Ms MacGregor.  In a subsequent defamation proceeding against Ms MacGregor, Hinton J held Mr Craig and Ms MacGregor defamed each other to a limited extant.  Hinton J relevantly held that Mr Craig sexually harassed Ms MacGregor and that Mr Craig’s statements were not protected by the qualified privilege applying to replies to attacks.  Mr Craig appeals against both findings. 

Defamation – Defences.  Whether the Judge erred in finding Mr Craig sexually harassed Ms MacGregor (meaning his defence of truth should succeed).
Held:  No.  The essential findings in the judgment under appeal and Toogood J’s judgment upheld by this Court are essentially identical.  The documentary evidence in both proceedings was very similar.  So too was the oral evidence.  The circumstances do not give rise to an issue estoppel.  Ms MacGregor was not a party to the Slater proceeding and though giving evidence for Mr Slater, did not share such a community or mutuality of interest that with him that she can be regarded as his privy.  But this Court follows its own decisions save in certain exceptional circumstances, none of which are made out here.  This Court’s decision in Craig v Slater cannot be distinguished on the basis of different facts.  It is unnecessary to consider whether pursuit of this appeal is itself an abuse of process. 

Defamation – Privilege.  Whether the Judge erred in finding Mr Craig lost the qualified privilege he would otherwise have had.
Held:  No.  The Judge erred in finding the defence of reply to attack privilege was unavailable where the attack was true.  The relevant enquiry as to the truth of the attack is whether the defendant knew the attack was true when publishing his or her reply.  The Judge did not err in saying Mr Craig did not refer to Ms MacGregor only to the extent reasonably necessary to respond to attack.  Reasonableness is not an element of privilege for reply to attack.  Relevance remains a prerequisite, though the defendant is given some leeway.  But absence of fair relevance of the reply to the attack may be evidence of a predominant motivation of ill will, or of a taking of improper advantage.
Less leeway should be afforded where the reply defames a non-attacker, as here.  It must genuinely be necessary to bring in the third party’s name in explanation.  Where a defendant goes further than necessary in counter-attacking a non-attacker, that suggests an improper purpose inconsistent with an occasion of privilege.  A defendant should not be entitled to skirt the more demanding thresholds for truth and honest opinion defences by slipping instead through the back door of privilege, simply because they were the subject of attack by another person altogether.The Judge was correct to find Mr Craig went too far.  Ms MacGregor was the ultimate source of the allegations but was not the attacker and there is no suggestion she acted in concert with Mr Craig’s attackers.  Mr Craig was capable of replying to the attacks by Messrs Williams, Slater and Stringer without also defaming Ms MacGregor as the Judge outlined.  Mr Craig deliberately targeted Ms MacGregor in his replies as a (later disclosed) email to his lawyer shows.  He treated her as a member of the attacking group and set about attempting to harm her reputation in a misguided attempt to restore his own.  Mr Craig therefore took improper advantage of the occasion of privilege.