New Zealand Law Society - Courts roundup 1 June - 7 June 2023
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Anderson v NZI International Acceptances Ltd and ors [2023] NZSC 64 (31 May 2023)
Unsuccessful leave application – Self-represented A further applied for leave relating to HC litigation during 1980s and 90s – Substantially application to appeal directly from 1999 HC judgment – SC said could not give leave to appeal directly from HC unless satisfied necessary in interests of justice to hear and determine appeal, and exceptional circumstances justified direct appeal – Not case here – Application dismissed.
Sutton and anor v Bell [2023] NZSC 65 (1 June 2023)
Unsuccessful appeal from CA – Section 44 of Property (Relationships) Act 1976 (PRA) allowed court to set aside party’s property disposition (e.g. transfer, sale or gift) to defeat another person’s claim or rights under PRA – S and B in de facto relationship for around seven and a half years and had two children together – Just before commencing de facto relationship, S transferred Auckland residential property (Auckland property) to Todd Sutton Trust trustees (Trustees) –
After relationship ended, B said S transferred Auckland property to Trustees to defeat her claim or rights under PRA – Applied for s 44 order setting aside transfer and directing that half interest vest in her – S said s 44 did not apply as he transferred Auckland property before relationship commenced – S said could not have intended to defeat B’s claim or rights as had no claim or rights to Auckland property at transfer date –
Family Court originally said de facto relationship began before Mr Sutton transferred Auckland property and that s 44 applied to disposition – In light of new evidence, High Court found that de facto relationship began after transfer of property – However, Judge concluded that s 44 applied to transfer – Court of Appeal also found that s 44 applied – Supreme Court granted Mr Sutton and Trustees leave to appeal – Approved question was whether Court of Appeal was correct to dismiss appeal to that Court.
Accident Compensation Corporation v Anderson & O’Leary Ltd [2023] NZCA 198
Unsuccessful application for leave to amend grounds of appeal – 2019 ACC changed the risk class classification of respondents’ activities to timber wholesaling, which had the effect of requiring them to pay higher levies – Respondents appealed and Court determined appropriate classification was hardware and building supplies retailing – ACC applied for leave to amend grounds of appeal to include additional questions – HELD: no need to amend the question of law for which leave had been granted – Submissions of approved question would necessarily encompass submissions as to the meaning of “activity” that proposed additional questions were intended to address – Application declined.
W v R [2023] NZCA 201
M (CA 87-2021) v R [2023] NZCA 205
Successful appeal against conviction – M convicted in 1999 of indecently assaulting his daughter A when she was aged between seven and eight – 2020, A recanted, saying she gave evidence which was untrue because she had been questioned at length by her uncle and was confused – Fresh evidence of M and A allowed – Hamon v R principles applied – HELD: likely driver in A’s decision to recant was her sister (B) and conclusion that supporting M in his appeal would help B – Wish to help her sister did not meant that A’s recantation was untrue – Conclusion A was a truthful witness – Not possible to identify why A might have given false evidence as a child, but impressed as being truthful now – Appeal against conviction allowed and conviction set aside – No retrial ordered in the circumstances.
Sneesby v Southern Response Earthquake Services Ltd [2023] NZCA 206
Unsuccessful application for leave to appeal – S’s property damaged in the Christchurch earthquakes and S received payments from EQC and his insurer (respondent) – S had been refused order permitting him to bring fresh proceedings against insurer (seeking compensation for losses resulting from insurer’s conduct in settling his claims for damage to items not covered by the Earthquake Commission Act 1993) as representative proceedings – Whether grounds for leave to appeal made out – Applicable principles in Greendrake v District Court of New Zealand – HELD: arguable that a scope of works and accompanying correspondence could amount to a representation as to the cost of remediation – 2017 settlement and discharge agreement was a bar to the proceeding, even though the proceedings were based on alleged misleading and deceptive conduct by insurer during the settlement of S’s insurance claim, rather than seeking payment in terms of the insurance policy – Fact S was not aware of a possible Fair Trading Act 1986 claim did not preclude his being able to settle future claims – No arguable error by Judge – Application for leave to appeal declined.
Lingman v R [2023] NZCA 209
Unsuccessful appeal against murder conviction – L and victim were both involved in dealing illegal drugs – L shot victim after victim arrived at the front door of L’s rural property – Primary issue at trial whether L killed the victim with murderous intent or acted in self-defence – Whether Judge erred in directions to the jury on self-defence, or gave inadequate prejudice and sympathy directions on L’s post-death conduct – Whether the post-mortem photographs lacked probative value, were highly prejudicial, and should have been ruled inadmissible – HELD: submission rejected that inclusion of the words “honest belief” could cause confusion for a jury because they might need to decide whether the defendant was honest or dishonest – Judge’s directions, summing up, and question trail on self-defence was adequate and no error leading to a miscarriage of justice – Judge gave adequate prejudice and sympathy directions – Directions about the photographs, in addition to the general sympathy and prejudice directions, adequately dealt with any unfairly prejudicial effect of the evidence – No miscarriage of justice occurred - Appeal dismissed.
Pouākani Claims Trust v Attorney-General and ors [2023] NZHC 1336 (30 May 2023) Churchman J
Successful judicial review application – Pouākani Claims Trust (PCT) applied to have memorials placed over titles to easements at Lakes Maraetai and Whakamaru in accordance with State-Owned Enterprises Act 1986 (SOE Act) – HC ruled interpreting easement deeds transferring titles from Crown to various SOEs – Considered whether Land Transfer Act 2017 prevented Registrar-General of Land from retrospectively amending title records to note memorials sought – Court made declarations easements transferred under SOE Act and memorialisation requirements applied at time registered – Application granted.
Te Rūnanga O Ngāti Whātua v Kingi and ors [2023] NZHC 1384 (2 June 2023) Harvey J
Unsuccessful strike out application – Te Rūnanga o Ngāti Whātua applied to strike out applications under Marine and Coastal Areas (Takutai Moana) Act 2011 (Ac) from D, K, with Hapū o Tangaroa ki lhu o Manaia tae atu ki Mangawhai and Attorney-General intervening as interested parties – Rūnanga said applications did not comply with s 101 requirements; areas claimed large and in D’s case inconsistent; unclear applicant group and seeming lack of mandate; insufficient information in affidavits to justify claim – D, K said strike-out contrary to tikanga; opportunity should be given to amend applications – Ngā Hapū o Tangaroa supported Runanga's application – Also said D, K applications contrary to Ngāpuhi tikanga –
HC said tikanga relevant to strike out but strike out application did not offend against tikanga – Historical context important to Act – Strike out could extinguish customary rights, statutory filing deadline – Generally inappropriate to fully strike out claim for no arguable case – However, parts of K’s claim plainly untenable and struck out where purported to claim land in Whāngarei on behalf of Ngāti Awa or associated entities – K directed to properly set out basis for claim to broad area given general understanding of different iwi/hāpu geographical areas of influence – D similarly directed to provide greater detail and specificity as to basis of claims, and to rectify inconsistencies in areas claimed between application, affidavit and public notice, including renotifying if necessary – Not permitted to extend claim – Unless order and/or stay inappropriate: no breach of directions/orders – Directions accordingly for D, K to comply by 2 September 2023 – Strike out application adjourned.
Ariste v R [2023] UKPC 18 (31 May 2023)
Successful appeal from Bahamas CA – A appealed against his conviction for armed robbery on basis that it was unsafe –
On 21 July 2010, A arrested for armed robbery – Interviewed and detained at police station until 25 July 2010, during which time he confessed to committing this and several other offences – Did not have access to legal representation – A said tortured into confessing –
A’s trial from 5-14 March 2012 – Remained unrepresented – Confession only direct evidence directly implicating A – Judge rejected application to exclude confession – Jury convicted A and, on 5 June 2012, sentenced to 15 years' imprisonment – CA rejected appeal on 18 February 2013 –
In 2016 A prosecuted for different robbery based on another confession made during July 2010 detention – A legally represented – Judge said confession inadmissible –
A appealed initial decision to PC – Said appeal against conviction should be allowed, because conviction unsafe or unsatisfactory; or because there has here been wrong decision or misdirection by judge on question of law or fact; or that he did not receive fair trial – He also said had been serious miscarriage of justice – Appeal grounds were: i. Denied access to legal representation during detention, police questioning and at trial; ii. Confession was obtained by oppression and so should not be admitted as evidence; and iii. Judge's directions to jury in relation on confession and evidence going to A’s character inadequate –
PC allowed appeal – Among other things, expressed “deep concern about what has happened in this case – A young man has been languishing in prison for over 12 years on basis of confession that should never have been admitted in evidence against him” – Appeal allowed.