New Zealand Law Society - Courts roundup 8 February - 14 February 2024
Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.
Adamson v Robinson [2024] NZSC 3 (5 February 2024)
Unsuccessful leave application – Self-represented A and J sought appeal CA Judge declining review of Deputy Registrar’s decision not to extend time to apply to dispense with security for costs – Underlying HC claim habeas corpus application, purportedly for child subject to Family Court interim parenting order – Order gave day-to-day care to J and some weekend and holiday contact to R –
SC said proposed appeal did not meet leave criteria – Application dismissed.
Boyd v Australian Federal Police [2024] NZSC 4
Unsuccessful leave application – Self-represented B serving 12-years four-month imprisonment for sexual offending against family member and former partner – Brought civil claims in HC against Australian Federal Police, New South Wales Legal Aid, New Zealand Defence Force, New Zealand Police, Attorney-General, Office of Inspectorate, Canterbury Intelligence Team and Ministry of Health, relating to removal from Australia and subsequent detention in New Zealand – Among other things alleged subjection to psychological torture and denial of protections afforded him under New Zealand Bill of Rights Act 1990 –
HC struck out claim as abuse of process – Appealed to CA – CA Judge declined B’s application to appoint amicus curiae and six-month stay of appeal –
SC said proposed appeal from interlocutory decision sought to relitigate judge’s reasoning – Said decisions about stay and appointing counsel related to B’s individual circumstances and particular appeal – No inherent matter of general or public importance – CA reasoning cogent and no apparent substantial miscarriage of justice arising – Not necessary in interests of justice for Court to hear and determine appeal – Leave criteria not met – Application dismissed.
Smith v Fonterra Co-operative Group [2024] NZSC 5 (7 February 2024)
Successful appeal from CA – S elder of Ngāpuhi and Ngāti Kahu and climate change spokesperson for Iwi Chairs Forum, national forum of tribal leaders – In August 2019, filed statement of claim in HC against seven respondents – Each New Zealand company said to be involved in industry that either emitted greenhouse gases (GHGs) or supplied products which released GHGs when burned – S alleged respondents damaged and would continue to damage his whenua and moana, including places of customary, cultural, historical, food gathering and spiritual significance to him and his whānau –
Three causes of action in tort: public nuisance, negligence and proposed climate system damage tort – Sought declaration respondents (individually and/or collectively) unlawfully either breached duty owed to him or caused or contributed to public nuisance and caused or would cause him loss through their activities – Also sought injunctive relief which would require respondents to either reduce emissions by specified amounts over defined period of time, or immediately cease emitting (or contributing to) net emissions –
Respondents applied to strike out proceeding saying S’s statement of claim raised no reasonably arguable cause of action – In strike out application, question not whether claim would ultimately succeed or not, but whether it should be allowed to proceed to trial – Only if bound to fail should case be struck out without trial –
HC said claims in public nuisance and negligence not reasonably arguable and struck them out – Declined to strike out claim based on proposed climate system damage tort – S appealed and respondents cross-appealed – CA struck out all three causes of action –
S appealed to SC – SC unanimously allowed S’s appeal and reinstated statement of claim – Said applying orthodox, long-settled principles governing strike out meant S’s claim should be allowed to proceed to trial, rather than being struck out pre-emptively – Appeal allowed.
Mills v Dalzell [2024] NZSC 6 (8 February 2024)
Unsuccessful leave application – Third proceedings self-represented M and P had brought against some respondents – These proceedings, arising from same circumstances as earlier proceedings but incorporating some additional defendants, struck out in HC – CA declined application for time extension, agreed with HC case “hopeless” –
SC said application did not meet leave criteria – Turned on particular facts – No question of general or public importance – Nothing raised indicated HC merits assessment – Application dismissed.
Taylor v R [2024] NZSC 7 (9 February 2024)
Unsuccessful leave application – T convicted after jury trial of 18 charges of sexual offending, including sexual violation by rape, sexual violation by unlawful sexual connection and doing indecent act on young person – Four rape charges and two unlawful sexual connection charges were representative charges – Offending over period when complainant aged between around seven and 14 – CA dismissed T’s appeal against conviction and sentence – Sought leave to appeal to SC –
SC said T’s application sought to reprise arguments rejected in CA and concerned applying settled law to particular circumstances – Raised no matter of general or public importance – Nothing T raised indicated CA analysis wrong – No appearance of miscarriage of justice – Application dismissed.
Wallace v R [2024] NZSC 8 (9 February 2024)
Unsuccessful leave application – In February 2022, following jury retrial W convicted of sexual violation, kidnapping and male assaults female all relating to same complainant – CA dismissed appeal against conviction – W sought leave to appeal to SC –
SC said not in interests of justice to grant application – For essentially same reasons as CA did not consider risk of miscarriage of justice arising out of two HC rulings relating to COVID-19 – Application dismissed.
Bullock v R [2024] NZCA 3
Unsuccessful appeal against conviction for sexual violation (x15) – Whether appellant did not receive a fair trial due to becoming unwillingly self-represented – Whether standby counsel gave inadequate advice on election not to give evidence – Issues between appellant and counsels’ appointed by the Legal Services Commission – Standby counsel appointed with appellants agreement – No miscarriage of justice – No error in advice given by standby counsel - HELD: Appeal dismissed.
Huang v Huang [2024] NZCA 5
Unsuccessful appeal against HC decisions in relation to jurisdiction and ancillary orders - Appellants filed a statement of claim alleging that the respondent had not accounted for the proceeds of a New Zealand investment made by the respondent on behalf of a business in the People’s Republic of China referred to informally by the family owners (Huang’s) as the Heli Group - Dispute over which members of the Huang family currently owned and controlled the Heli Group and therefore who was entitled to the proceeds - Appellants sought judgment of approximately $7.8M together with an account of profits, a freezing order over New Zealand bank accounts related to the investment and ancillary orders - Respondent filed an appearance under protest to jurisdiction and, subsequently, an application to dismiss the proceeding on the ground that he had not been validly served, or alternatively, that the New Zealand courts were forum non conveniens – HC upheld protest to jurisdiction and declined to make a freezing order and ancillary orders - HELD: Appeal is dismissed - Appellants must pay the respondent costs on a band A basis together with usual disbursements.
Haines v Memelink [2024] NZCA 7
Unsuccessful application for a stay of HC proceeding – HC granted summary judgment for liability against the applicants in 2021 – In December 2023 the applicants applied to HC for an adjournment of a three day quantum hearing set down in February 2024 – Application declined – Applicants then applied for an extension of time to appeal the liability judgment to this Court some two years out of time – In January 2024 the applicants applied to this Court for an order “staying the February hearing” pending the determination of the application in this Court – Application had procedural difficulties – Application did not have merit – HELD: Application for a stay of the High Court proceeding is declined – The applicants must pay costs for a standard application on a band A basis together with usual disbursements.
R v Sinclaire-Beere [2024] NZHC 114 (8 February 2024) Venning J
Sentencing – S-B and N following HC jury trial guilty of burglary and manslaughter – Maximum sentence for burglary 10 years, for manslaughter life imprisonment –
Both sentenced to four years 10 months imprisonment.
R v Lamositele-Brown [2024] NZHC 118 (8 February 2024) Fitzgerald J
Sentencing – Followed jury verdicts of guilty of murder and unlawful possession of firearm – Also sentenced on drug charges transferred from DC –
Aggravating factors use of weapon, unlawful possession of firearm, lack of provocation and victim being unarmed – Starting MPI 11 years six months' imprisonment to reflect low level of pre-meditation and violence, but intentional killing – Taking into account uplift for drug related offending and reduction for defendant's remorse and rehabilitation potential, sentenced to life imprisonment, MPI 12 years eight months' imprisonment.
Harvey v Minister for Primary Industry and Resources [2024] HCA 1 (7 February 2024)
Successful appeal from Full Federal Court – Principal issue whether proposed grant of mineral lease under Mineral Titles Act 2010 (NT) would constitute "the creation ... of a right to mine for the sole purpose of the construction of an infrastructure facility ... associated with mining" for purpose of s 24MD(6B)(b) Native Title Act 1993 (Cth) (NTA) –
McArthur River Project carried on by Mount Isa Mines Limited (Mt Isa Mines) in Northern Territory – Comprises mining zinc-lead-silver ore, processing, treatment and concentration of ore, its storage and transportation for sale – Once mined, ore concentrate travelled 120 kilometres by road to "Bing Bong" loading facility located on Gulf of Carpentaria – There loaded onto bulk-carrier for transhipment to larger ocean-going ships – Bulk-carrier used navigation channel maintained by regular dredging – Dredged sediment pumped onshore to Dredge Spoil Emplacement Area (DSEA) – In 2013, Mt Isa Mines applied for new mineral lease (ML 29881) under Mineral Titles Act 2010 (NT) to enable it to construct new DSEA on pastoral lease it owned – H and S native title holders of land comprising pastoral lease – Third appellant prescribed body corporate for NTA purposes –
Before primary judge, appellants said entitled to procedural rights in s 24MD(6B) NTA because granting ML 29881 constituted "creation ... of a right to mine for the sole purpose of the construction of an infrastructure facility ... associated with mining" – Primary judge said ML 29881 did not satisfy s 24MD(6B)(b) – On appeal, Full Court said "right to mine" referred to "future act" that conferred right to engage in mining activities – Said ML 29881 would not, when granted, create "right to mine" because new DSEA to be constructed on land separate from land upon which mining took place and concerned shipping ore – Said DSEA activity too "remote" from mining and could not be regarded as "necessary for meaningful exercise of the right to mine” –
Full Court considered whether DSEA "infrastructure facility" as defined in s 253 NTA – Whilst new DSEA would be infrastructure facility within phrase’s ordinary meaning Full Court said Parliament did not intend to use that meaning but instead intended items listed in "infrastructure facility" definition exhaustive list of qualifying facilities – Said DSEA did not fall within any of those enumerated items –
On appeal, HC said decision to grant ML 29881 was creation of right to mine for sole purpose of constructing infrastructure facility associated with mining – In particular statutory context, "right to mine" should be construed as composite term used to denote all those mining tenements capable of being issued under State and Territory natural resource laws – Proposed DSEA "infrastructure facility" – Appellants entitled to procedural rights under s 24MD(6B) NTA – Appeal allowed.
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (7 February 2024)
Unsuccessful application for constitutional or other writ – HC within original jurisdiction refused judicial review application regarding Minister’s delegate’s decision to refuse I visa under s 501 Migration Act 1958 (Cth) (Act) – Applicant (I)said delegate erred in law on several grounds, each relating to Direction No 90 – Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of visa under section 501CA (Direction 90) –
Direction 90, made under s 499(1) required decision-maker to take into account considerations identified in sections 8 and 9 where relevant to decision – Included: protection of Australian community (para 8.1); any engagement in family violence by non-citizens (para 8.2); best interests of minor child affected by decision (para 8.3); and expectations of Australian community (para 8.4) –
Following conviction for various offences, I notified that consideration being given to refusing his visa application on "character grounds" under s 501(1) because had "substantial criminal record" as defined by s 501(7) – I invited to comment and given notice that, in preparing any response, might wish to consider Direction 90 – Further information was submitted to support I’s application, but delegate ultimately decided to refuse to grant visa, concluding that I did not pass "character test" and considerations favouring non-refusal outweighed those favouring refusal –
I said, among other things, delegate failed to comply with para 8.3 or failed to inquire about status of minor child in circumstances where it was legally unreasonable not to do so – Court said generally for person applying to identify personal facts and circumstances relevant to decision – Information contained only single reference to MC and did not disclose that MC was, in fact, minor child – Delegate did not fail to comply with para 8.3(1) – HC also rejected other claims – Appeal dismissed.
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) [2024] SCC 4 (2 February 2024)
Successful appeal from Ontario CA – Concerned whether public should have access to mandate letters sent from Ontario Premier to cabinet ministers shortly after his party formed government in 2018 –
Journalist from Canadian Broadcasting Corporation (CBC) requested access to 23 mandate letters Ontario Premier delivered to each of his cabinet ministers after 2018 provincial election – Mandate letters set out Premier’s views on policy priorities for government’s term – Cabinet Office declined journalist’s request claiming mandate letters exempt from disclosure under s 12(1) of Ontario’s Freedom of Information and Protection of Privacy Act (Act) – In general, freedom of information legislation, such as Act, struck balance between public disclosure and confidentiality executive required to govern effectively – Section 12(1) protected confidentiality of records that would reveal substance of Cabinet deliberations –
CBC appealed Cabinet Office’s decision to Ontario’s Information and Privacy Commissioner – Commissioner said mandate letters not exempt under s 12(1) and ordered their disclosure – Said purpose of Cabinet records exemption to promote free and frank discussion among Cabinet members issues coming before them for decision without concern for chilling effect that might result from disclosure of their statements or material on which they were deliberating – However, in his view, s 12(1) designed to protect deliberations occurring within Cabinet’s policy-making process, not outcomes of that process, policy decisions themselves or mere subjects or topics of deliberation –
Commissioner said mandate letters could be disclosed because nothing suggested were intended to serve, or served, as basis for discussion by Cabinet as whole – Moreover, rather than revealing views, opinions, thoughts, ideas and concerns of ministers, Commissioner characterized mandate letters as endpoint of Premier’s formulation of policies and goals to be achieved by each Ministry –
Ontario Attorney-General asked Divisional Court to review Commissioner’s decision – Divisional Court said decision reasonable – On appeal, CA majority agreed with Divisional Court – Attorney General appealed to SC –
SC majority allowed appeal – Said mandate letters protected from disclosure under s 12(1) – Said opening words mandated substantive analysis of requested record to determine whether disclosure would shed light on Cabinet deliberations – Act text, purpose and context led to conclusion mandate letters protected from disclosure under s 12(1)’s opening words – Mandate letters reflected Premier’s view on importance of certain policy priorities and marked initiation (rather than end) of fluid process of policy formulation within Cabinet and revealing substance of Cabinet deliberations –
Said “In approaching assertions of Cabinet confidentiality, administrative decision makers and reviewing courts must be attentive to the vital importance of public access to government-held information but also to Cabinet secrecy’s core purpose of enabling effective government, and its underlying rationale of efficiency, candour, and solidarity” – Appeal allowed.