New Zealand Law Society - Courts roundup 14 March - 20 March 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Tomar v Family Court at Auckland [2023] NZCA 127
Unsuccessful application for orders under s59 Senior Courts Act 2016 to transfer 4 HC judicial review proceedings to CA – Applicant’s former wife brought proceedings against him the FC – Proceedings substantially successful – Applicant filed dozens of unsuccessful applications during the proceedings – Applicant filed 4 separate applications for judicial review in the HC in relation to the proceedings in the FC and the implementation of the orders made by that Court – Second respondent applied to HC seeking orders prohibiting applicant from commencing or continuing any civil proceedings against her without the leave of a Judge – Judge declined to make a civil restraint order, but made order prohibiting applicant from continuing all existing litigation in HC, bringing new proceedings in the HC related in any way to the second respondent, and filing applications of any sort in relation to the previous 2 points – This prohibition stands unless the applicant first pays the second respondent outstanding costs of $98,998 – Applicant filed various appeals against the stay of proceedings before applying for transfer of the judicial review proceedings – HELD: Applications struck out on grounds they are an abuse of process.
Williams v R [2024] NZCA 57
Successful application to adduce fresh evidence – Unsuccessful appeal against conviction and sentence - Appellant pleaded guilty to charge of being an accessory after the fact to wounding with reckless disregard - Sentenced to 6 months supervision and 3 months community detention - Appeal against the DC refusal to grant a discharge without conviction - Whether the application to adduce fresh evidence should be granted - Whether the DC erred in refusing to grant a discharge without conviction - Alternatively whether the DC erred in its methodology to determine the appropriate sentence, causing an error in the sentence imposed – HELD: Offending was serious and appellant's degree of assistance after the fact significant – DC rightly took into account the relevant personal mitigating factors - The balancing of the gravity of the offending with the consequences of a conviction was an assessment for the Court and the conclusion not in error – DC erred in failing to apply the methodology prescribed by CA in R v Taueki - Error did not lead to a manifestly excessive sentence - Application to adduce fresh evidence granted - Appeal against conviction and sentence dismissed.
[K] v R [2024] NZCA 61
R v M [2024] NZHC 576 (18 March 2024) Grice J
Sentencing – M sentenced for attempted murder s 173 Crimes Act 1961 – Turned 15 following Judge alone trial in Youth Court –
HC said three aggravating factors present: premeditation, serious injuries and use of weapon – No mitigating factors – Starting point: seven years' imprisonment – Offending less serious than comparator cases – 30 percent discount for youth – 30 percent discount for rehabilitative prospects and progress – Eight month discount for time spent on electronically monitored bail – Sentence of imprisonment converted to maximum available period of home detention s 80A(3) Sentencing Act – End sentence 12 months' home detention – Application for final name suppression adjourned.
Redland City Council v Kozik [2024] HCA 7 (13 March 2024)
Unsuccessful appeal, cross-appeal from Queensland CA – Two issues to be determined – First, whether regulations under Local Government Act 2009 (Qld) (Act) entitled K and other claimants (K) to recover "special charges" paid to Redland City Council (Council) where charges later found to have been levied under invalid resolutions – Secondly, whether Council had defence to K’s claim for restitution because Council used money to conduct works which benefited K –
K owned rateable land in Council area adjacent to waterways forming part of one of three reserves – Between July 2011 and July 2017, under powers conferred under Act, Council purported to levy special charges on landowners, including K – Special charges to fund works on reserves which Council statutorily required to perform, including dredging, maintenance and monitoring (relevant works) – After becoming aware resolutions invalid, Council refunded portion of special charges not spent on relevant works, but retained amounts it had spent on works –
K commenced proceedings in Queensland SC, seeking repayment of spent special charges, both in debt under regulations under Act and as money had and received – Primary judge said regulations providing for return of incorrectly levied charges (return provisions), meant Council required to refund special charges – K’s action for money had and received failed – On appeal, CA said Council not liable in debt but liable for restitution at common law because special charges paid under mistake of law – CA rejected Council's good consideration defence –
HC unanimously dismissed K’s cross-appeal, which contended payments recoverable in debt under return provisions in regulations – Said K not entitled to recovery of special rates as statutory debt since return provisions did not apply where no valid resolution to levy special charge –
HC majority dismissed Council's appeal saying K were not entitled to restitution of money paid by mistake which Council not entitled to receive or retain – Rejected Council's good consideration defence because (1) relevant works performed on basis of statutory obligations to do so, not because of special charges; (2) K did not benefit from relevant works in sense of requesting or freely accepting relevant works and may even have obtained no financial advantage from them; and (3) defence of good consideration in circumstances would stultify Act operation – Appeal and cross-appeal dismissed.
R v Rowan [2024] HCA 9 (13 March 2024)
Unsuccessful appeal from Victoria CA – Issue whether CA erred to conclude evidence adduced before trial judge on voir-dire of "a continuing or ever present threat" sufficient to raise duress defence both at common law and under s 322O Crimes Act 1958 (Vic) –
In June 2021, R tried before jury in Victorian County Court on 13 counts of sexual offences, committed in presence of partner, "JR", against two of their daughters between 2009 and 2015 – R denied committing offences – Before trial commenced, sought to have duress defence put to jury – Contended that, even if found to have committed acts, not guilty of offences as reasonably believed JR threatened harm to both her and their children – Believed would be carried out unless she committed offences – In support, R relied on evidence from her two daughters, forensic psychologist's report and tendency evidence concerning JR, all of which described JR's threatening, violent and controlling behaviour towards family – Trial judge ruled no factual basis for duress defence to be properly raised before jury – Jury found R guilty of 12 of 13 counts – R appealed against convictions and sentence –
CA upheld R’s appeal saying trial judge erred to not allow duress defence to be put to jury – Two Judges said could be inferred, given combined psychological, physical and sexual abuse JR inflicted against R over period of years, that she was "the subject of a continuing or ever present threat", sufficient form of harm to establish threat required for duress defence – In HC, Crown contended that CA erroneously extended law of duress to include "duress of circumstances" which did not require evidence of any threat to inflict harm if accused failed to commit offences – Two Judges also said based on evidence from R’s daughters and forensic psychologist's report, would have been open to jury to conclude R subject to "unstated" demand she commit acts constituting offences or she would be subject to physical and sexual abuse – R contended that although duress of circumstances accepted defence in England and Wales, not adopted in Australian jurisdictions applying common law duress defence –
HC unanimously said CA did not adopt or apply duress of circumstances doctrine – CA approach consistent with accepted understanding of nature of threat required for common law duress defence in Australia – Accordingly, CA correct to find substantial miscarriage of justice occurred by not allowing duress defence to be put to jury – Crown appeal dismissed.
AB v Independent Broad-Based Anti-Corruption Commission [2024] HCA 10 (13 March 2024)
Partly successful appeal from Victoria CA – Concerned proper construction of s 162(3) Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (Act) –
Between 2019 and 2021, Independent Broad-based Anti-corruption Commission (IBAC) investigated allegations of unauthorised access to, and disclosure of, internal email accounts of public body (second appellant) – In 2021, IBAC provided AB, senior officer and employee of second appellant, with redacted version of draft special report (Draft Report), which contained proposed findings adverse to appellants – AB subsequently requested from IBAC documents relied upon to support proposed adverse findings – Responding to request, IBAC provided some documents, but refused to provide others – Section 162(3) Act provided if "the IBAC intends to include in a report ... a comment or an opinion which is adverse to any person, the IBAC must first provide the person a reasonable opportunity to respond to the adverse material" –
Before primary judge, appellants sought declaratory relief that IBAC failed to comply with obligation under s 162(3) to provide them with "reasonable opportunity" to respond to "adverse material" – Also sought order restraining IBAC from transmitting Draft Report to Victorian Parliament and otherwise publishing it – Primary judge said "adverse material" in s 162(3) meant "the material upon which IBAC's adverse comments or opinions ... were based" – Also said, to comply with s 162(3), sufficient if IBAC provided "substance or gravamen of the adverse material" without providing material on which findings based –
Refusing appellants leave to appeal, but upholding notice of contention, IBAC filed said primary judge erred to construe phrase "adverse material" – Said "adverse material" in s 162(3) referred to adverse comment or opinion IBAC proposed to publish in Draft Report and not material on which comment or opinion based – Also said Draft Report included "substance or gravamen" of matters IBAC took into account – CA concluded IBAC complied with s 162(3) –
HC said CA erred in construction of "adverse material" – Phrase as used in s 162(3) referred to evidentiary material said by IBAC to justify "comment or ... opinion which is adverse to any person" – Compliance with s 162(3) required affected person to be afforded "reasonable opportunity" to respond to evidentiary material, in most cases, would be satisfied by affording reasonable opportunity to respond to "substance or gravamen" of material – However, HC said CA correct to rule, subject to one exception, IBAC complied with s 162(3) – Exception subject to IBAC undertaking to HC that IBAC would not transmit to Victorian Parliament of Victoria report containing one adverse comment or opinion which failed to comply with s 162(3) – Therefore, HC said no substantive relief warranted – Appeal partly allowed.
Yatar v TD Insurance Meloche Monnex [2024] SCC 8 (15 March 2024)
Successful appeal from Ontario CA – Y injured in automobile accident in 2010 – Insurer initially paid accident benefits – However, in January 2011, insurer informed Y payment of all benefits had been stopped in absence of completed disability certificate – Dispute resolution form attached to letter – In February 2011, insurer told Y that following medical assessment income replacement benefits reinstated but claim to other two benefits, housekeeping and home maintenance, denied – In September 2011, insurer told Y income replacement benefits denied and payments would be stopped – No dispute resolutions forms attached to either of last two letters –
Y applied for mediation, mandatory at time, to dispute denial of her benefits – Mediation process came to end in January 2014 and mediator released report – At time of Y’s accident, Ontario’s Insurance Act provided for two year limitation period after insurer’s refusal to pay benefits to commence proceeding to contest denial – Also provided limitation period extended by 90 days after mediator provided report – Y commenced proceeding before Licence Appeal Tribunal (LAT) in March 2018 – Application was dismissed as being time barred and request for reconsideration dismissed –
Under Ontario Licence Appeal Tribunal Act, 1999, Y’s right of appeal from LAT adjudicator’s reconsideration decision restricted to questions of law – Y pursued appeal on questions of law, and also sought judicial review regarding questions of fact or mixed fact and law – Divisional Court dismissed appeal saying Y showed no errors of law made by LAT adjudicator – Also dismissed Y’s application for judicial review, saying no exceptional circumstances justifying judicial review – CA dismissed Y’s appeal, saying would only be in rare cases judicial review remedy would be exercised given legislated scheme for resolving disputes and Y had appropriate alternative remedy – Also said even if judicial review application ought to have been considered, would have been denied as LAT adjudicator’s decision reasonable –
Y appealed to SC – SC unanimously allowed appeal – Said right of appeal did not preclude individual from seeking judicial review for questions not dealt with in appeal – Said where their statutory right of appeal limited to questions of law, judicial review available for questions of fact or mixed fact and law –
Error for courts below to rule, where limited appeal right, judicial review should only be exercised in exceptional or rare cases – Limiting appeal from Tribunal’s decisions to pure questions of law did not reflect intention by legislature to restrict recourse to courts on other questions arising from Tribunal’s administrative decisions – Only denoted intention to subject Tribunal decisions on questions of law to correctness review and proceeding with judicial review on questions of fact or mixed fact and law fully respected legislature’s institutional design choices –
SC said Tribunal’s reconsideration decision unreasonable – Among other reasons, it failed to have regard to effect of reinstatement of income replacement benefits between February and September 2011 on validity of initial denial – SC allowed appeal and referred matter back to Tribunal for reconsideration.