Court of Appeal Judgments of Public Interest
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Case name
Case number
[2024] NZCA 250
Date of Judgment
20 June 2024
Summary
This appeal involved two joint owners of units in a body corporate building alleging that two resolutions and a deed of the Body Corporate indemnifying past, present and future committee chairpersons and members, including the second and third respondents, were ultra vires the Body Corporate’s powers as they were not “anchored” to a duty in the Unit Titles Act. One of the key drivers behind the indemnification was that there had been high levels of tension, including litigation, between members of the Body Corporate. The appellants sought minority relief under s 210 of the Act. They also alleged the High Court Judge, Grice J, erred in finding that their claim for minority relief was time barred and in excluding two affidavits as inadmissible.
Did the Judge err in finding the affidavits were inadmissible? Held: No
Grice J excluded an affidavit filed by a Mr Phillips (another owner) on the basis it was filed by him and not the appellants, and an affidavit filed by Mr Kennedy as it was filed after the hearing without leave. The Court held that the Judge was correct in these decisions, for the reasons she gave.
Were the resolutions and deed outside the powers of the Body Corporate? Held: No
The Court canvassed the legislative scheme of the Act, including its purpose—to provide a legal framework for the ownership and management of unit title developments “on a socially and economically sustainable basis” via “a flexible and responsive” governance regime—and the power conferred upon bodies corporate to “do anything a natural person of full age and capacity may do” excepted as provided for by the Act or another Act.
The Court held that a resolution/deed to grant indemnity for the benefit of the governance of a body corporate, as done in this case, is not prohibited by the Act. In this case it was directly related to the Body Corporate’s duty to meet expenses relating to the management and governance of the unit title development and a natural and understandable reaction to the threat of disruptive litigation against members of the Body Corporate personally.
The Court noted that the requirement of s 78 that a body corporate “may do an act under section 77 only for the purpose of performing its duties or exercising its powers” reflects the ordinary public law requirements of a body established under statute, and is to be read in light of the purpose of the Act. Case law under the old Act stating that the exercise of power must be “anchored to” a duty in the Act could be distinguished as the scheme of the old Act and new Act are different.
That the indemnity serves individual persons interests, cannot be revoked retrospectively and payments are to be made forthwith are not contrary to the Act or its purposes and did not put the resolutions/deeds outside the Body Corporate’s powers. The features are functional, and the deed gave the Body Corporate the ability to prospectively terminate the deed, and provided reasonable exceptions and limits to the indemnity.
Were the appellants in time to challenge the second resolution? Held: Yes.
An application for minority relief under s 210 requires that the application be brought “within 28 days of the passing of the resolution”. The High Court Judge held that “the passing of the resolution” means when voting closed not when the result was notified to members. The appellants’ application was therefore out of time.
The Court considered the purpose of the time bar in s 210 is to ensure that applications are made in a relatively timely fashion, given that an applicant can be expected to need some time to understand the resolution and potentially take advice on whether to apply. A potential applicant would not have 28 days to do so if the period runs from the time at which votes are received because they will not know what the result is. There was also the possibility that a careless or cynical committee could exploit the time limit by delaying when the votes are counted/result is notified. The Court considered that the purpose of the time limit was better achieved by the 28-day period beginning from notification. As a result, the appellants’ application concerning the second resolution was in time.
Was the second resolution unjust or inequitable to the minority? Held: No.
The Court considered that the resolution was not unjust or inequitable to the minority/appellants. The motivation for the indemnity was understandable. The indemnity does not make litigation pointless if the point is to pursue a genuine substantive point about governance rather than punish particular decision-makers. The appellants are not treated any differently to any other member in their ability to pursue such litigation.
The Court dismissed the appeal and ordered that the appellants pay the respondents' costs.
Did the Judge err in finding the affidavits were inadmissible? Held: No
Grice J excluded an affidavit filed by a Mr Phillips (another owner) on the basis it was filed by him and not the appellants, and an affidavit filed by Mr Kennedy as it was filed after the hearing without leave. The Court held that the Judge was correct in these decisions, for the reasons she gave.
Were the resolutions and deed outside the powers of the Body Corporate? Held: No
The Court canvassed the legislative scheme of the Act, including its purpose—to provide a legal framework for the ownership and management of unit title developments “on a socially and economically sustainable basis” via “a flexible and responsive” governance regime—and the power conferred upon bodies corporate to “do anything a natural person of full age and capacity may do” excepted as provided for by the Act or another Act.
The Court held that a resolution/deed to grant indemnity for the benefit of the governance of a body corporate, as done in this case, is not prohibited by the Act. In this case it was directly related to the Body Corporate’s duty to meet expenses relating to the management and governance of the unit title development and a natural and understandable reaction to the threat of disruptive litigation against members of the Body Corporate personally.
The Court noted that the requirement of s 78 that a body corporate “may do an act under section 77 only for the purpose of performing its duties or exercising its powers” reflects the ordinary public law requirements of a body established under statute, and is to be read in light of the purpose of the Act. Case law under the old Act stating that the exercise of power must be “anchored to” a duty in the Act could be distinguished as the scheme of the old Act and new Act are different.
That the indemnity serves individual persons interests, cannot be revoked retrospectively and payments are to be made forthwith are not contrary to the Act or its purposes and did not put the resolutions/deeds outside the Body Corporate’s powers. The features are functional, and the deed gave the Body Corporate the ability to prospectively terminate the deed, and provided reasonable exceptions and limits to the indemnity.
Were the appellants in time to challenge the second resolution? Held: Yes.
An application for minority relief under s 210 requires that the application be brought “within 28 days of the passing of the resolution”. The High Court Judge held that “the passing of the resolution” means when voting closed not when the result was notified to members. The appellants’ application was therefore out of time.
The Court considered the purpose of the time bar in s 210 is to ensure that applications are made in a relatively timely fashion, given that an applicant can be expected to need some time to understand the resolution and potentially take advice on whether to apply. A potential applicant would not have 28 days to do so if the period runs from the time at which votes are received because they will not know what the result is. There was also the possibility that a careless or cynical committee could exploit the time limit by delaying when the votes are counted/result is notified. The Court considered that the purpose of the time limit was better achieved by the 28-day period beginning from notification. As a result, the appellants’ application concerning the second resolution was in time.
Was the second resolution unjust or inequitable to the minority? Held: No.
The Court considered that the resolution was not unjust or inequitable to the minority/appellants. The motivation for the indemnity was understandable. The indemnity does not make litigation pointless if the point is to pursue a genuine substantive point about governance rather than punish particular decision-makers. The appellants are not treated any differently to any other member in their ability to pursue such litigation.
The Court dismissed the appeal and ordered that the appellants pay the respondents' costs.
Case name
Case number
[2024] NZCA 243
Date of Judgment
19 June 2024
Summary
M, the appellant, and H entered a de facto relationship in 2006. In 2008, they moved into H’s father’s property, which H had inherited in 2009 after his father’s death. M and H occupied the property as their family home, together with their child. In February 2020, M and H separated. M was granted a permanent occupation order that entitled her and the child to occupy the property to the exclusion of H.
Various discussions ensued between M and H about the property. It was suggested that she buy out his half share interest in the property. He asserted at one stage that it was not relationship property. The parties could not reach agreement.
H had relatively minor debts. His estate, principally comprising his interest in the property, was worth considerably more than his debts.
H filed an application to be adjudicated bankrupt on 23 June 2021. The Official Assignee (Assignee) accepted the application and H was adjudicated bankrupt on 30 June 2021.
After the adjudication, the Assignee and M discussed whether she was prepared to pay off H’s creditors and purchase the property. H however refused to agree to such an arrangement.
The Assignee considered that the property had passed to the Assignee in accordance with ss 20A, 20B and 53A of the Property (Relationships) Act and that M’s rights in the property were therefore restricted to her protected interest, being the specified sum of $103,000. The Assignee said it was open to M to purchase the property for its full value less the specified sum. M rejected this proposal and said that H had entered into bankruptcy in order to prevent her from exercising her rights under the Property (Relationships) Act and that the adjudication was therefore an abuse of process.
In May 2022, M applied for H’s bankruptcy to be annulled on the grounds that H was not bankrupt and/or that his bankruptcy amounted to an abuse of process.
In the High Court, Associate Judge Gardiner considered that the issue was whether the bankruptcy was an abuse of process designed to circumvent the Property (Relationships) Act and prevent M from receiving her share of the property. The Associate Judge considered H’s adjudication would be an abuse of process only if the sole reason for the bankruptcy was to circumvent M’s relationship property claims. The Associate Judge concluded that if that was a reason for the adjudication, it was not the only reason. She was not satisfied that the adjudication should be annulled because it was an abuse of process. M’s application was declined. The Associate Judge also held that M should pay costs to H.
M appealed the decision. She argued that the Associate Judge was wrong to hold that the Court had to be satisfied that H’s sole purpose in applying for bankruptcy was to avoid M’s relationship property claim. Rather, M argued that the correct test for whether a bankruptcy should be annulled for abuse of process was whether the improper purpose was the predominant purpose.
H did not participate in the appeal; nor had he participated in the High Court hearing. The Assignee was represented at both hearings and he opposed M’s application and her appeal.
Bankruptcy and insolvency — Official Assignee — Adjudication of bankruptcy — Annulment — Abuse of process
The central issue to be determined on appeal is whether the Associate Judge was right to reject M’s contention that H should not have been adjudicated bankrupt.
In what circumstances have the courts found that annulment should be ordered on the ground that an adjudication should not have occurred?
The courts may annul an adjudication on the ground that it ought not to have been ordered where: there was no jurisdiction to make the order or some procedural error has occurred; the statute is explicit that a debtor‑initiated adjudicated is predicated on the debtor’s insolvency/inability to pay his or her debts and the debtor is not insolvent; the statute is not explicit that a debtor‑initiated adjudication is predicated on the debtor’s insolvency/inability to pay his or her debts and the debtor is not insolvent; notwithstanding a debtor’s insolvency, the application for adjudication was futile because no bankruptcy purpose could, as a matter of fact, be served by the adjudication; or the application for an adjudication was an “abuse of process” in the sense that it was made for an improper purpose, namely a collateral purpose designed to advantage the applicant which is outside the scope of the bankruptcy regime.
Annulment will not be ordered where grounds for annulment exist, but it is likely that a further application for adjudication would be made. Where an applicant for annulment of an order made on a debtor’s petition establishes there is no balance sheet insolvency, the evidential onus shifts to the debtor to establish that nevertheless he or she was unable to pay his or her debts. Even where relevant grounds are made out, the decision to annul remains a matter of discretion.
Does abuse of process continue to be a ground for annulment of a debtor‑initiated adjudication under the Insolvency Act 2006, which provides that such applications are to be filed with the Assignee, not the court?
The principles developed in abuse of process cases continue to pertain where an adjudication is debtor‑initiated under the Insolvency Act. “Abuse of process” is effectively synonymous with “improper process”, a vitiating concept that is not confined to judicial decisions. Further, the literal wording of the Insolvency Act makes it clear that the ability to apply for an annulment on the ground that “the bankrupt should not have been adjudicated bankrupt” is not limited to creditor‑initiated adjudications.
If abuse of process continues to be a ground, should M be granted leave to argue that abuse of process is established where a debtor seeking to be adjudicated bankrupt had a predominant (rather than sole) improper or collateral purpose for doing so?
Counsel for the Assignee submitted that the “predominant purpose” argument was not raised in M’s notice of appeal and leave is therefore required to pursue it. To the extent that leave is required, it should be granted. Whether the test in an application for annulment based on improper purpose requires the alleged purpose to be the sole or predominant one seems a matter of general moment. It would be artificial to exclude consideration of the issue.
Does establishing such a predominant purpose suffice?
An application for adjudication made for an improper or collateral purpose may be annulled even where it is not the petitioner’s sole purpose. “Substantial” purpose is the appropriate benchmark. Substantiality may well be established if, for example, the application for adjudication would not have been made “but for” the collateral purpose. That enquiry naturally invites consideration of the other questions highlighted in the bankruptcy cases, including whether the debtor is, in fact, insolvent and whether bankruptcy is, in the circumstances, futile. There must be evidence capable of establishing the existence of the collateral purpose.
Do the facts establish that H had a potentially vitiating collateral purpose here?
Yes. The obvious inference to be drawn from the interactions between M and H between September 2020 and June 2021 is that H was looking for ways to prevent M from exercising her rights under the Property (Relationships) Act. The evidence shows that H had no genuine fear of insolvency and that, in seeking to be adjudicated bankrupt, his predominant purpose was to circumvent M’s rights under the Property (Relationships) Act. H’s application to be adjudicated bankrupt was an abuse of process and should be annulled.
The appeal is allowed. The order adjudicating H bankrupt is annulled, with effect from the date of adjudication, being 30 June 2021. The High Court order directing M to pay H’s costs in the High Court is set aside and the question of costs is to be reconsidered by the High Court in light of this decision. The respondent is to pay the appellant’s costs on the appeal on a Band A basis for a standard appeal, together with usual disbursements. The Official Assignee’s costs of administration are to be paid by the respondent and may be secured by way of charge over his share of the Property.
Various discussions ensued between M and H about the property. It was suggested that she buy out his half share interest in the property. He asserted at one stage that it was not relationship property. The parties could not reach agreement.
H had relatively minor debts. His estate, principally comprising his interest in the property, was worth considerably more than his debts.
H filed an application to be adjudicated bankrupt on 23 June 2021. The Official Assignee (Assignee) accepted the application and H was adjudicated bankrupt on 30 June 2021.
After the adjudication, the Assignee and M discussed whether she was prepared to pay off H’s creditors and purchase the property. H however refused to agree to such an arrangement.
The Assignee considered that the property had passed to the Assignee in accordance with ss 20A, 20B and 53A of the Property (Relationships) Act and that M’s rights in the property were therefore restricted to her protected interest, being the specified sum of $103,000. The Assignee said it was open to M to purchase the property for its full value less the specified sum. M rejected this proposal and said that H had entered into bankruptcy in order to prevent her from exercising her rights under the Property (Relationships) Act and that the adjudication was therefore an abuse of process.
In May 2022, M applied for H’s bankruptcy to be annulled on the grounds that H was not bankrupt and/or that his bankruptcy amounted to an abuse of process.
In the High Court, Associate Judge Gardiner considered that the issue was whether the bankruptcy was an abuse of process designed to circumvent the Property (Relationships) Act and prevent M from receiving her share of the property. The Associate Judge considered H’s adjudication would be an abuse of process only if the sole reason for the bankruptcy was to circumvent M’s relationship property claims. The Associate Judge concluded that if that was a reason for the adjudication, it was not the only reason. She was not satisfied that the adjudication should be annulled because it was an abuse of process. M’s application was declined. The Associate Judge also held that M should pay costs to H.
M appealed the decision. She argued that the Associate Judge was wrong to hold that the Court had to be satisfied that H’s sole purpose in applying for bankruptcy was to avoid M’s relationship property claim. Rather, M argued that the correct test for whether a bankruptcy should be annulled for abuse of process was whether the improper purpose was the predominant purpose.
H did not participate in the appeal; nor had he participated in the High Court hearing. The Assignee was represented at both hearings and he opposed M’s application and her appeal.
Bankruptcy and insolvency — Official Assignee — Adjudication of bankruptcy — Annulment — Abuse of process
The central issue to be determined on appeal is whether the Associate Judge was right to reject M’s contention that H should not have been adjudicated bankrupt.
In what circumstances have the courts found that annulment should be ordered on the ground that an adjudication should not have occurred?
The courts may annul an adjudication on the ground that it ought not to have been ordered where: there was no jurisdiction to make the order or some procedural error has occurred; the statute is explicit that a debtor‑initiated adjudicated is predicated on the debtor’s insolvency/inability to pay his or her debts and the debtor is not insolvent; the statute is not explicit that a debtor‑initiated adjudication is predicated on the debtor’s insolvency/inability to pay his or her debts and the debtor is not insolvent; notwithstanding a debtor’s insolvency, the application for adjudication was futile because no bankruptcy purpose could, as a matter of fact, be served by the adjudication; or the application for an adjudication was an “abuse of process” in the sense that it was made for an improper purpose, namely a collateral purpose designed to advantage the applicant which is outside the scope of the bankruptcy regime.
Annulment will not be ordered where grounds for annulment exist, but it is likely that a further application for adjudication would be made. Where an applicant for annulment of an order made on a debtor’s petition establishes there is no balance sheet insolvency, the evidential onus shifts to the debtor to establish that nevertheless he or she was unable to pay his or her debts. Even where relevant grounds are made out, the decision to annul remains a matter of discretion.
Does abuse of process continue to be a ground for annulment of a debtor‑initiated adjudication under the Insolvency Act 2006, which provides that such applications are to be filed with the Assignee, not the court?
The principles developed in abuse of process cases continue to pertain where an adjudication is debtor‑initiated under the Insolvency Act. “Abuse of process” is effectively synonymous with “improper process”, a vitiating concept that is not confined to judicial decisions. Further, the literal wording of the Insolvency Act makes it clear that the ability to apply for an annulment on the ground that “the bankrupt should not have been adjudicated bankrupt” is not limited to creditor‑initiated adjudications.
If abuse of process continues to be a ground, should M be granted leave to argue that abuse of process is established where a debtor seeking to be adjudicated bankrupt had a predominant (rather than sole) improper or collateral purpose for doing so?
Counsel for the Assignee submitted that the “predominant purpose” argument was not raised in M’s notice of appeal and leave is therefore required to pursue it. To the extent that leave is required, it should be granted. Whether the test in an application for annulment based on improper purpose requires the alleged purpose to be the sole or predominant one seems a matter of general moment. It would be artificial to exclude consideration of the issue.
Does establishing such a predominant purpose suffice?
An application for adjudication made for an improper or collateral purpose may be annulled even where it is not the petitioner’s sole purpose. “Substantial” purpose is the appropriate benchmark. Substantiality may well be established if, for example, the application for adjudication would not have been made “but for” the collateral purpose. That enquiry naturally invites consideration of the other questions highlighted in the bankruptcy cases, including whether the debtor is, in fact, insolvent and whether bankruptcy is, in the circumstances, futile. There must be evidence capable of establishing the existence of the collateral purpose.
Do the facts establish that H had a potentially vitiating collateral purpose here?
Yes. The obvious inference to be drawn from the interactions between M and H between September 2020 and June 2021 is that H was looking for ways to prevent M from exercising her rights under the Property (Relationships) Act. The evidence shows that H had no genuine fear of insolvency and that, in seeking to be adjudicated bankrupt, his predominant purpose was to circumvent M’s rights under the Property (Relationships) Act. H’s application to be adjudicated bankrupt was an abuse of process and should be annulled.
The appeal is allowed. The order adjudicating H bankrupt is annulled, with effect from the date of adjudication, being 30 June 2021. The High Court order directing M to pay H’s costs in the High Court is set aside and the question of costs is to be reconsidered by the High Court in light of this decision. The respondent is to pay the appellant’s costs on the appeal on a Band A basis for a standard appeal, together with usual disbursements. The Official Assignee’s costs of administration are to be paid by the respondent and may be secured by way of charge over his share of the Property.
Case name
Case number
[2024] NZCA 218
Case name
Case number
[2023] NZCA 282
Date of Judgment
11 June 2024
Summary
Reissue date: 11 June 2024
CRIMINAL LAW – Practice and procedure – Suppression
Appeal dismissed. Judge Farish’s applications under s 202 and 205 of the Criminal Procedure Act 2011 are declined. The existing suppression orders apply until noon on 17 July 2023 and shall then expire.
This judgment has been reissued in a redacted form in light of the Supreme Court’s judgment allowing the appeal of Judge Jane Farish against the part of the decision dismissing Judge Farish’s application under s 205 of the Criminal Procedure Act 2011.
The appellant, Mr Dallison, pleaded guilty to charges of attempted murder and wounding with intent to injure, and three representative charges of possession of pistols, restricted weapons, and magazines. On 28 April 2023, he was sentenced to an effective term of six years and ten months’ imprisonment by Isac J in the High Court at Christchurch.
Prior to sentencing, Mr Dallison had appealed against a judgment of Isac J that revoked a suppression order originally made in the District Court that prohibited publication of the name, address, occupation and any other details that might lead to the identification of his partner Judge Jane Farish as a person connected to him. Mr Dallison had contended publication of the connected person’s name and occupation would endanger his safety while in custody.
Mr Dallison appealed against the revocation of suppression to this Court. This Court also heard two further applications for suppression made successively by Judge Farish under ss 202 and 205 of the Criminal Procedure Act 2011. These applications were made to this Court as the first instance court.
The Appeal Issue 1: Was a material change in circumstances required, under s 208 of the Criminal Procedure Act, for Isac J to revisit the District Court suppression order? Held: No
Counsel for the appellant submitted that the High Court only had jurisdiction to review a suppression order where there has been a material change in circumstances. The Court held there was nothing to prevent the High Court from revisiting the issue of suppression under s 208 of the Criminal Procedure Act. Once the prosecution had been transferred to the High Court, that Court became the court with the original jurisdiction in respect of any review of suppression under s 208(3). Following this transfer, it would have been possible for Isac J to consider suppression afresh under the power given by s 208(3). The application did not require consideration of whether there had been a change of circumstances, as had been required in Boag v R [2022] NZCA 277.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
Counsel for the appellant submitted that the High Court had erred in finding that the threshold ground in s 202(2)(c) of the Criminal Procedure Act had not been met and that publication of Mr Dallison’s relationship with Judge Farish would not create a real, appreciable, and ongoing risk to his safety. It was alleged that this risk would arise through Mr Dallison’s connection with Judge Farish making him a target for retribution at the hands of aggrieved prisoners, or intimidation or manipulation more generally.
This Court was not satisfied that the argument put forward met the statutory requirement that publication of Judge Farish’s name would be likely to endanger Mr Dallison’s safety. All that had been proffered was the argument that there will be a risk that some fellow prisoners will take action against Mr Dallison because of his relationship with a judge. This was not sufficient to rebut the presumption that the Department of Corrections will comply with its statutory obligations to ensure the safe custody and welfare of prisoners.
This Court held the threshold test was not met in these circumstances, and that Mr Dallison’s appeal must be dismissed. The Court further noted that in any event that it would not have exercised its discretion in favour of ordering suppression due to the strength of public interest.
Judge Farish’s Applications
Issue 1: Does this Court have jurisdiction to hear these applications at first instance? Held: Yes
The Court held it had jurisdiction to deal with both of Judge Farish’s applications as the first instance court.
The Court held there is jurisdiction to consider the application under s 205. The application made under s 205 was directed to evidence and written submissions in respect of Mr Dallison’s appeal. It would be impractical for an application to suppress those matters initiated in the trial court.
The Court also held that a reading of s 202 which gave the Court jurisdiction was appropriate to meet the interests of justice as they arise. Jurisdiction arose because the application was advanced in the context of Mr Dallison’s appeal.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
In respect of the application made pursuant to s 205, counsel for Judge Farish sought suppression of facts in the submissions and evidence.
After considering evidence on the risk to safety, the Court held that the statutory threshold had not been met. The Court further recorded that it would not have exercised its discretion in favour of suppression due to the strong public interest surrounding the offending and all surrounding circumstances.
CRIMINAL LAW – Practice and procedure – Suppression
Appeal dismissed. Judge Farish’s applications under s 202 and 205 of the Criminal Procedure Act 2011 are declined. The existing suppression orders apply until noon on 17 July 2023 and shall then expire.
This judgment has been reissued in a redacted form in light of the Supreme Court’s judgment allowing the appeal of Judge Jane Farish against the part of the decision dismissing Judge Farish’s application under s 205 of the Criminal Procedure Act 2011.
The appellant, Mr Dallison, pleaded guilty to charges of attempted murder and wounding with intent to injure, and three representative charges of possession of pistols, restricted weapons, and magazines. On 28 April 2023, he was sentenced to an effective term of six years and ten months’ imprisonment by Isac J in the High Court at Christchurch.
Prior to sentencing, Mr Dallison had appealed against a judgment of Isac J that revoked a suppression order originally made in the District Court that prohibited publication of the name, address, occupation and any other details that might lead to the identification of his partner Judge Jane Farish as a person connected to him. Mr Dallison had contended publication of the connected person’s name and occupation would endanger his safety while in custody.
Mr Dallison appealed against the revocation of suppression to this Court. This Court also heard two further applications for suppression made successively by Judge Farish under ss 202 and 205 of the Criminal Procedure Act 2011. These applications were made to this Court as the first instance court.
The Appeal Issue 1: Was a material change in circumstances required, under s 208 of the Criminal Procedure Act, for Isac J to revisit the District Court suppression order? Held: No
Counsel for the appellant submitted that the High Court only had jurisdiction to review a suppression order where there has been a material change in circumstances. The Court held there was nothing to prevent the High Court from revisiting the issue of suppression under s 208 of the Criminal Procedure Act. Once the prosecution had been transferred to the High Court, that Court became the court with the original jurisdiction in respect of any review of suppression under s 208(3). Following this transfer, it would have been possible for Isac J to consider suppression afresh under the power given by s 208(3). The application did not require consideration of whether there had been a change of circumstances, as had been required in Boag v R [2022] NZCA 277.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
Counsel for the appellant submitted that the High Court had erred in finding that the threshold ground in s 202(2)(c) of the Criminal Procedure Act had not been met and that publication of Mr Dallison’s relationship with Judge Farish would not create a real, appreciable, and ongoing risk to his safety. It was alleged that this risk would arise through Mr Dallison’s connection with Judge Farish making him a target for retribution at the hands of aggrieved prisoners, or intimidation or manipulation more generally.
This Court was not satisfied that the argument put forward met the statutory requirement that publication of Judge Farish’s name would be likely to endanger Mr Dallison’s safety. All that had been proffered was the argument that there will be a risk that some fellow prisoners will take action against Mr Dallison because of his relationship with a judge. This was not sufficient to rebut the presumption that the Department of Corrections will comply with its statutory obligations to ensure the safe custody and welfare of prisoners.
This Court held the threshold test was not met in these circumstances, and that Mr Dallison’s appeal must be dismissed. The Court further noted that in any event that it would not have exercised its discretion in favour of ordering suppression due to the strength of public interest.
Judge Farish’s Applications
Issue 1: Does this Court have jurisdiction to hear these applications at first instance? Held: Yes
The Court held it had jurisdiction to deal with both of Judge Farish’s applications as the first instance court.
The Court held there is jurisdiction to consider the application under s 205. The application made under s 205 was directed to evidence and written submissions in respect of Mr Dallison’s appeal. It would be impractical for an application to suppress those matters initiated in the trial court.
The Court also held that a reading of s 202 which gave the Court jurisdiction was appropriate to meet the interests of justice as they arise. Jurisdiction arose because the application was advanced in the context of Mr Dallison’s appeal.
Issue 2: Had the threshold ground, endangerment to the safety of any person, been met? Held: No
In respect of the application made pursuant to s 205, counsel for Judge Farish sought suppression of facts in the submissions and evidence.
After considering evidence on the risk to safety, the Court held that the statutory threshold had not been met. The Court further recorded that it would not have exercised its discretion in favour of suppression due to the strong public interest surrounding the offending and all surrounding circumstances.
Media Release
- MR [2023] NZCA 282 (PDF, 193 KB)
Case number
[2024] NZCA 207
Date of Judgment
04 June 2024
Case name
Case number
[2024] NZCA 161
Date of Judgment
15 May 2024
Summary
The appeal is allowed in part. The finding that Whangārei District Council is liable for the misfeasance of its officers in public office is set aside, along with the award of exemplary damages.
The appeal is otherwise dismissed.
The Council must pay costs for a complex appeal on a band A basis, with provision for second counsel, and usual disbursements.
NEGLIGENCE -LIMITATION -FRAUDULENT CONCEALMENT
In 2004, Mr Daisley purchased a property near Whangārei that included a long-established quarry. When he began to work the quarry the Whangārei District Council asserted that he needed a resource consent to do so. The Council issued abatement and enforcement notices to Mr Daisley and his company, eventually seeking an enforcement order against him in the Environment Court. During this time Mr Daisley asserted that the quarry enjoyed existing use rights, however the Council insisted that he had not proved this. In September 2009, following further inquiries from Mr Daisley's lawyer, the Council located in its records a resource consent issued for the quarry in 1988.
The Council admits that it was negligent. The High Court also made a finding of misfeasance in public office, which the Council denies.
Mr Daisley did not commence this proceeding until August 2009, just inside six years from when the 1988 land use consent was discovered. The main issue in this case therefore is whether Mr Daisley's claim is barred by the Limitation Act 1950. The High Court found that the limitation defence failed because the cause of action accrued on a continuing basis or, in the alternative, the cause of action had been concealed by fraud within the meaning of s 28(b) of the Limitation Act 1950. The Council was therefore found liable and ordered to pay damages. It has appealed.
In regards to the High Court's finding of continuing breach, this Court finds that while there were periods in which this case could be analysed in terms of continuing breach, nothing turned on it because there was no allegation of repeated breach of duty after August 2009. Losses from earlier breaches of duty continued to accrue after that date but for the most part they were not distinct losses from those suffered outside the limitation period. That being so, the only loss that was within time for limitation period was the loss on the sale of the property. That is unless the running of time was postponed under the Limitation Act 1950.
Turning to s 28 of the Limitation Act 1950, this Court has considered the test for fraudulent concealment in New Zealand, particularly in light of recent developments in the United Kingdom. The Court considers that subjective recklessness as to the existence of facts compromising a cause of action is sufficient to meet the test for fraudulent concealment.
In this case, none of the Council officers actually knew of the 1988 land use consent. This Court respectfully considers that the Judge was wrong to the extent that he found the Council's corporate knowledge of the consent was sufficient for the purposes of s 28. However, this Court finds that Council officers were provided with credible information that Council records might well contain evidence of a land use consent or existing use rights, and their failure to search the records for this information was unreasonable in the circumstances. Therefore, the Council's failure to search its records for a land use consent or evidence of an existing use was subjectively reckless. That being so, it was unconscionable, amounting to fraudulent concealment for purposes of s 28(b) of the Limitation Act 1950. It follows that time did not run for limitation purposes until the consent was disclosed on 22 September 2009.
In regards to misfeasance, this Court finds that the Council officers were not subjectively reckless as to the limits of their authority. The appeal against the finding of liability for misfeasance in public office is allowed.
The appeal is otherwise dismissed.
The Council must pay costs for a complex appeal on a band A basis, with provision for second counsel, and usual disbursements.
NEGLIGENCE -LIMITATION -FRAUDULENT CONCEALMENT
In 2004, Mr Daisley purchased a property near Whangārei that included a long-established quarry. When he began to work the quarry the Whangārei District Council asserted that he needed a resource consent to do so. The Council issued abatement and enforcement notices to Mr Daisley and his company, eventually seeking an enforcement order against him in the Environment Court. During this time Mr Daisley asserted that the quarry enjoyed existing use rights, however the Council insisted that he had not proved this. In September 2009, following further inquiries from Mr Daisley's lawyer, the Council located in its records a resource consent issued for the quarry in 1988.
The Council admits that it was negligent. The High Court also made a finding of misfeasance in public office, which the Council denies.
Mr Daisley did not commence this proceeding until August 2009, just inside six years from when the 1988 land use consent was discovered. The main issue in this case therefore is whether Mr Daisley's claim is barred by the Limitation Act 1950. The High Court found that the limitation defence failed because the cause of action accrued on a continuing basis or, in the alternative, the cause of action had been concealed by fraud within the meaning of s 28(b) of the Limitation Act 1950. The Council was therefore found liable and ordered to pay damages. It has appealed.
In regards to the High Court's finding of continuing breach, this Court finds that while there were periods in which this case could be analysed in terms of continuing breach, nothing turned on it because there was no allegation of repeated breach of duty after August 2009. Losses from earlier breaches of duty continued to accrue after that date but for the most part they were not distinct losses from those suffered outside the limitation period. That being so, the only loss that was within time for limitation period was the loss on the sale of the property. That is unless the running of time was postponed under the Limitation Act 1950.
Turning to s 28 of the Limitation Act 1950, this Court has considered the test for fraudulent concealment in New Zealand, particularly in light of recent developments in the United Kingdom. The Court considers that subjective recklessness as to the existence of facts compromising a cause of action is sufficient to meet the test for fraudulent concealment.
In this case, none of the Council officers actually knew of the 1988 land use consent. This Court respectfully considers that the Judge was wrong to the extent that he found the Council's corporate knowledge of the consent was sufficient for the purposes of s 28. However, this Court finds that Council officers were provided with credible information that Council records might well contain evidence of a land use consent or existing use rights, and their failure to search the records for this information was unreasonable in the circumstances. Therefore, the Council's failure to search its records for a land use consent or evidence of an existing use was subjectively reckless. That being so, it was unconscionable, amounting to fraudulent concealment for purposes of s 28(b) of the Limitation Act 1950. It follows that time did not run for limitation purposes until the consent was disclosed on 22 September 2009.
In regards to misfeasance, this Court finds that the Council officers were not subjectively reckless as to the limits of their authority. The appeal against the finding of liability for misfeasance in public office is allowed.
Case number
[2024] NZCA 160
Date of Judgment
13 May 2024
Summary
Judicial review - Appeals - Treaty of Waitangi - Procedure - Commissions of inquiry - Evidence - Comity- Power to issue summonses - Waitangi Tribunal - Minister
The appeals are formally allowed, but we make no other order having regard to the changed circumstances since the summons was issued.
If there is any issue as to costs the parties may file memoranda within 10 working days. Our preliminary view is that costs in this Court should lie where they fall.
Any issue as to costs in the High Court is to be dealt with in that Court in accordance with this judgment.
The issues before the Court arose out of an urgent inquiry (the Inquiry) on which the Waitangi Tribunal embarked into the repeal of section 7 AA of the Oranga Tamariki Act 1989. Section 7 AA sets out the duties of the Chief Executive of Oranga Tamariki in relation to the Treaty of Waitangi | te Tiriti o Waitangi. The Tribunal hearing was scheduled to be on 12 April.
Judge Doogan, the Presiding Officer of the Tribunal panel, issued a memorandum directing the Crown to respond to a set of questions through the "responsible minister" (the Minister for Children). He said it would assist if responses to these questions could be filed by way of a brief of evidence or affidavit on or before 9 April.
On 5 April, the Crown notified the Tribunal that it did not intend to call Minister Chhour as a witness. Instead, the Cabinet papers would be produced as part of the Crown evidence. The Crown provided the Tribunal with a Cabinet paper headed "Repeal of section 7 AA of the Oranga Tamariki Act 1989", signed by the Minister for Children. In this paper, the Minister for Children recorded her concern that the section may have been used to justify decision-making in relation to care arrangements for Maori children which had not been safe or in the child's best interests.
On 9 April, the Tribunal maintained, despite the Crown's contention that evidence from the Minister was "not necessary to inform the tribunal of the relevant information", that it would greatly assist its inquiry if the Minister provided evidence as to the basis for the opinions recorded in the Cabinet paper. The Tribunal had read the departmental advice annexed to the Cabinet paper, which recorded a lack of robust empirical evidence to support the premise behind the policy.
The Crown, in its response dated 10 April, reiterated that it would not call the Minister as a witness nor produce a written statement from her. The Crown stated that if the Tribunal proceeded to summons the Minister or direct her to file evidence, the Crown would launch urgent judicial review proceedings in the High Court.
On 11 April, the Tribunal issued a summons for the Minister to appear before the Tribunal on 26 April for the purpose of providing evidence. On 15 April, the Minister commenced a proceeding against the Waitangi Tribunal in the High Court. The High Court granted the application for judicial review and set aside the summons.
Following these events, the Minister sent a letter to the Tribunal on 26 April, which recorded her opinion that the record showed all there was to show in support of the Crown policy and that there was no more information she could materially add.
On 29 April, the Tribunal released an interim report concerning the proposed repeal of s 7 AA, identifying that a "key problem" with the Government's decision to repeal s 7 AA was that it had come about due to a belief or assumption that coalition agreements took precedence over the Crown's obligations to Maori under the Treaty of Waitangi.
On 10 May, the Tribunal issued a further report setting out its findings and recommendations, and reserved leave for the parties to apply for further directions following the release of the Court's judgment.
Issue 1: Is it within the scope of the Waitangi Tribunal's power to issue summonses to witnesses?
Held: Yes. The Waitangi Tribunal has a role of constitutional importance. It has a statutory duty to inquire into the claims made to it under s 6(1) of the Treaty of Waitangi Act 1975 that a Crown policy to enact legislation is inconsistent with the principles of the Treaty of Waitangi. The Act provides that, in fulfilling that duty, it has the powers of a commission of inquiry under the Commissions of Inquiry Act 1908, including the power under s 4D of that Act to summons witnesses to give evidence.
Issue 2: Was the Tribunal's issue of the summons to the Minister lawful?
Held: Yes. It was legitimate for the Tribunal to consider that the Minister might be able to provide more information both relevant and necessary to the Inquiry. When issuing the summons, the Tribunal was also appropriately sensitive to relevant issues, including collective Cabinet responsibility, the confidentiality of Cabinet discussions, and legal privilege. It also indicated it preferred that the Minister provided the requested information voluntarily.
Issue 3: Does the principle of comity operate to prevent the Tribunal asking for information that would, in its view, assist it to carry out the inquiry?
Held: No. The principle of comity did not apply to limit the power of the Tribunal. The Tribunal is fulfilling a statutory duty, and s 6(6) identifies when its jurisdiction is limited by the proceedings of Parliament. Moreover, even if comity applies it applies to the Crown as well as the Tribunal, and such a duty would involve the Minister voluntarily providing the information that the Tribunal requested. That would also be consistent with the Crown's Treaty obligations.
Issue 4: Mootness and relief
After the Tribunal issued the summons, a number of events took place. The Minister provided a letter to the Tribunal responding to the questions it asked; officials gave evidence related to those matters; and the Tribunal issued both an interim and full report. The introduction of a Bill is imminent. These changed circumstances give rise to issues of mootness. However, even if the appeal were moot, that would not preclude the Court from deciding the appeal and issuing a fully reasoned decision, given the issues of public importance involved.
The appeals are formally allowed, but we make no other order having regard to the changed circumstances since the summons was issued.
If there is any issue as to costs the parties may file memoranda within 10 working days. Our preliminary view is that costs in this Court should lie where they fall.
Any issue as to costs in the High Court is to be dealt with in that Court in accordance with this judgment.
The issues before the Court arose out of an urgent inquiry (the Inquiry) on which the Waitangi Tribunal embarked into the repeal of section 7 AA of the Oranga Tamariki Act 1989. Section 7 AA sets out the duties of the Chief Executive of Oranga Tamariki in relation to the Treaty of Waitangi | te Tiriti o Waitangi. The Tribunal hearing was scheduled to be on 12 April.
Judge Doogan, the Presiding Officer of the Tribunal panel, issued a memorandum directing the Crown to respond to a set of questions through the "responsible minister" (the Minister for Children). He said it would assist if responses to these questions could be filed by way of a brief of evidence or affidavit on or before 9 April.
On 5 April, the Crown notified the Tribunal that it did not intend to call Minister Chhour as a witness. Instead, the Cabinet papers would be produced as part of the Crown evidence. The Crown provided the Tribunal with a Cabinet paper headed "Repeal of section 7 AA of the Oranga Tamariki Act 1989", signed by the Minister for Children. In this paper, the Minister for Children recorded her concern that the section may have been used to justify decision-making in relation to care arrangements for Maori children which had not been safe or in the child's best interests.
On 9 April, the Tribunal maintained, despite the Crown's contention that evidence from the Minister was "not necessary to inform the tribunal of the relevant information", that it would greatly assist its inquiry if the Minister provided evidence as to the basis for the opinions recorded in the Cabinet paper. The Tribunal had read the departmental advice annexed to the Cabinet paper, which recorded a lack of robust empirical evidence to support the premise behind the policy.
The Crown, in its response dated 10 April, reiterated that it would not call the Minister as a witness nor produce a written statement from her. The Crown stated that if the Tribunal proceeded to summons the Minister or direct her to file evidence, the Crown would launch urgent judicial review proceedings in the High Court.
On 11 April, the Tribunal issued a summons for the Minister to appear before the Tribunal on 26 April for the purpose of providing evidence. On 15 April, the Minister commenced a proceeding against the Waitangi Tribunal in the High Court. The High Court granted the application for judicial review and set aside the summons.
Following these events, the Minister sent a letter to the Tribunal on 26 April, which recorded her opinion that the record showed all there was to show in support of the Crown policy and that there was no more information she could materially add.
On 29 April, the Tribunal released an interim report concerning the proposed repeal of s 7 AA, identifying that a "key problem" with the Government's decision to repeal s 7 AA was that it had come about due to a belief or assumption that coalition agreements took precedence over the Crown's obligations to Maori under the Treaty of Waitangi.
On 10 May, the Tribunal issued a further report setting out its findings and recommendations, and reserved leave for the parties to apply for further directions following the release of the Court's judgment.
Issue 1: Is it within the scope of the Waitangi Tribunal's power to issue summonses to witnesses?
Held: Yes. The Waitangi Tribunal has a role of constitutional importance. It has a statutory duty to inquire into the claims made to it under s 6(1) of the Treaty of Waitangi Act 1975 that a Crown policy to enact legislation is inconsistent with the principles of the Treaty of Waitangi. The Act provides that, in fulfilling that duty, it has the powers of a commission of inquiry under the Commissions of Inquiry Act 1908, including the power under s 4D of that Act to summons witnesses to give evidence.
Issue 2: Was the Tribunal's issue of the summons to the Minister lawful?
Held: Yes. It was legitimate for the Tribunal to consider that the Minister might be able to provide more information both relevant and necessary to the Inquiry. When issuing the summons, the Tribunal was also appropriately sensitive to relevant issues, including collective Cabinet responsibility, the confidentiality of Cabinet discussions, and legal privilege. It also indicated it preferred that the Minister provided the requested information voluntarily.
Issue 3: Does the principle of comity operate to prevent the Tribunal asking for information that would, in its view, assist it to carry out the inquiry?
Held: No. The principle of comity did not apply to limit the power of the Tribunal. The Tribunal is fulfilling a statutory duty, and s 6(6) identifies when its jurisdiction is limited by the proceedings of Parliament. Moreover, even if comity applies it applies to the Crown as well as the Tribunal, and such a duty would involve the Minister voluntarily providing the information that the Tribunal requested. That would also be consistent with the Crown's Treaty obligations.
Issue 4: Mootness and relief
After the Tribunal issued the summons, a number of events took place. The Minister provided a letter to the Tribunal responding to the questions it asked; officials gave evidence related to those matters; and the Tribunal issued both an interim and full report. The introduction of a Bill is imminent. These changed circumstances give rise to issues of mootness. However, even if the appeal were moot, that would not preclude the Court from deciding the appeal and issuing a fully reasoned decision, given the issues of public importance involved.
Media Release
- MR [2024] NZCA 160 (PDF, 177 KB)
Case name
Case number
[2024] NZCA 154
Date of Judgment
09 May 2024
Summary
Indefeasibility of title - Title - Easement - Estoppel
In the early 1980s, underground pipes to convey water to neighbouring land (the benefitted titles) were laid by agreement on a route on the burdened land that differed from that described in the registered legal easement. In 1996, the owner of the burdened land, Dr Ford, transferred title to independent trustees of his family trust (of which he was a beneficiary). In 1999, title was transferred back to Dr Ford and his wife, Mrs Ford, who were by then trustees and beneficiaries of the trust (the first respondents). The first and second appellants purchased their benefitted titles without knowledge that the pipes did not follow the route of the registered easement.
From the time of the agreement to vary the route for the pipes on the burdened land until 2019, the benefitted titles continued to have the benefit of the easement over the varied route. However, following a dispute beginning in 2016, Dr Ford cut off the appellants' water supply in 2019. The burdened land was also transferred to the second respondent of which Dr Ford's son was the sole director and shareholder. The water supply was reinstated by High Court order pending the determination of the appellants' claim for rectification of the registered easement or for recognition of an equitable easement, or for a finding that the appellants were estopped from refusing to give effect to the equitable easement.
In the High Court, Peters J held that there was an equitable easement created when the pipes were laid, but that it "did not survive" transfer of title to the independent trustees. Had it survived, the Judge would have found the transfer of the burdened land to the second respondent to be affected by fraud and so not entitled to the protection of indefeasibility against unregistered interests under s 62 of the Land Transfer Act 1952 (the 1952 L TA). The Judge also rejected claims of estoppel and rectification. At trial, the appellants had further argued that an exception to indefeasibility applied to the burdened land when it was transferred to the independent trustees because the registered easement was a "misdescription of any ... easement created in or existing upon any land" pursuant to s 62(b) of the 1952 LT A. The Judge did not directly address this argument.
Following the filing of the appeal in this Court, the burdened land was sold to new owners who agreed to vary the legal easement so that it applied to the route of the pipes as laid. The first respondents pleaded that the appeal was moot because of this development. The second respondent, by this time in liquidation, took no part in the appeal.
Held: The appeal is allowed.
It was appropriate to consider the appeal because: its outcome could be financially important to the appellants; part of the appellants' claim was not directly addressed in the High Court; and the case could have general importance.
Section 62(b) of the 1952 LT A was not intended to apply to an easement that was correctly recorded on the title at the time it was entered on the register, and where there was a subsequent agreement for the easement to follow a different route but the registered legal easement was not varied to reflect the new agreed route.
The first respondents were bound by the equitable easement. The grantor of an equitable interest is bound by the terms of the grant while he or she remains the registered proprietor of the burdened land. The effect of s 62 of the 1952 LTA was that, when the burdened land was transferred to the independent trustees, the equitable easement was unenforceable had the independent trustees wished to assert their right to be free of it. However, it remained enforceable against Dr Ford when the land returned to his control. The protection from unregistered interests in s 62 of the 1952 LT A, and the indefeasibility principle of the Torrens system, did not protect Dr Ford from the enforcement in personam of the easement he had agreed to.
The claim of estoppel by silence was not established. The appellants detrimentally relied upon a mistaken state of affairs in purchasing their properties in the belief that there was a legal easement providing their water supply over the burdened land. However, as the High Court found, it was not clear how Dr Ford could have been under a duty to warn the appellants about this prior to their purchase when there was no evidence he knew any purchases were taking place. If a duty to speak arose subsequent to the purchase from a course of conduct up until 2016 as alleged, the appellants did not demonstrate any detrimental reliance.
In the early 1980s, underground pipes to convey water to neighbouring land (the benefitted titles) were laid by agreement on a route on the burdened land that differed from that described in the registered legal easement. In 1996, the owner of the burdened land, Dr Ford, transferred title to independent trustees of his family trust (of which he was a beneficiary). In 1999, title was transferred back to Dr Ford and his wife, Mrs Ford, who were by then trustees and beneficiaries of the trust (the first respondents). The first and second appellants purchased their benefitted titles without knowledge that the pipes did not follow the route of the registered easement.
From the time of the agreement to vary the route for the pipes on the burdened land until 2019, the benefitted titles continued to have the benefit of the easement over the varied route. However, following a dispute beginning in 2016, Dr Ford cut off the appellants' water supply in 2019. The burdened land was also transferred to the second respondent of which Dr Ford's son was the sole director and shareholder. The water supply was reinstated by High Court order pending the determination of the appellants' claim for rectification of the registered easement or for recognition of an equitable easement, or for a finding that the appellants were estopped from refusing to give effect to the equitable easement.
In the High Court, Peters J held that there was an equitable easement created when the pipes were laid, but that it "did not survive" transfer of title to the independent trustees. Had it survived, the Judge would have found the transfer of the burdened land to the second respondent to be affected by fraud and so not entitled to the protection of indefeasibility against unregistered interests under s 62 of the Land Transfer Act 1952 (the 1952 L TA). The Judge also rejected claims of estoppel and rectification. At trial, the appellants had further argued that an exception to indefeasibility applied to the burdened land when it was transferred to the independent trustees because the registered easement was a "misdescription of any ... easement created in or existing upon any land" pursuant to s 62(b) of the 1952 LT A. The Judge did not directly address this argument.
Following the filing of the appeal in this Court, the burdened land was sold to new owners who agreed to vary the legal easement so that it applied to the route of the pipes as laid. The first respondents pleaded that the appeal was moot because of this development. The second respondent, by this time in liquidation, took no part in the appeal.
Held: The appeal is allowed.
It was appropriate to consider the appeal because: its outcome could be financially important to the appellants; part of the appellants' claim was not directly addressed in the High Court; and the case could have general importance.
Section 62(b) of the 1952 LT A was not intended to apply to an easement that was correctly recorded on the title at the time it was entered on the register, and where there was a subsequent agreement for the easement to follow a different route but the registered legal easement was not varied to reflect the new agreed route.
The first respondents were bound by the equitable easement. The grantor of an equitable interest is bound by the terms of the grant while he or she remains the registered proprietor of the burdened land. The effect of s 62 of the 1952 LTA was that, when the burdened land was transferred to the independent trustees, the equitable easement was unenforceable had the independent trustees wished to assert their right to be free of it. However, it remained enforceable against Dr Ford when the land returned to his control. The protection from unregistered interests in s 62 of the 1952 LT A, and the indefeasibility principle of the Torrens system, did not protect Dr Ford from the enforcement in personam of the easement he had agreed to.
The claim of estoppel by silence was not established. The appellants detrimentally relied upon a mistaken state of affairs in purchasing their properties in the belief that there was a legal easement providing their water supply over the burdened land. However, as the High Court found, it was not clear how Dr Ford could have been under a duty to warn the appellants about this prior to their purchase when there was no evidence he knew any purchases were taking place. If a duty to speak arose subsequent to the purchase from a course of conduct up until 2016 as alleged, the appellants did not demonstrate any detrimental reliance.
Case number
[2024] NZCA 152
Date of Judgment
07 May 2024
Summary
JUDICIAL REVIEW — Appeals, Ministerial decision, climate change, Crown Minerals Act
This appeal concerned a review of the decision, by the delegate of the Minister of Energy and Resources, to grant two petroleum exploration permits under s 25(1) of the Crown Minerals Act 1991.
Students for Climate Solutions Inc challenged the decision to grant the permits in the High Court. It argued the decision-maker was obliged and failed to consider the climate change implications of the decision — either as a mandatory relevant consideration or in having regard to the principles of the Treaty of Waitangi | Te Tiriti o Waitangi, rendering the decision unlawful. These arguments remain substantively the same on appeal. In the High Court Cooke J rejected the arguments. Although he accepted there were genuine climate change issues arising from continuing to grant permits allowing exploration for fossil fuels, he was satisfied having regard to the scheme and purpose of the Act climate change considerations were irrelevant and accordingly the decision to grant the permits was not unreasonable. He acknowledged that the decision-maker was obliged to take into account the principles of the Treaty of Waitangi but held that obligation had been discharged.
The panel agreed the appeal should be dismissed, however Mallon J wrote separate reasons in relation to the relevance of s 5ZN of the Climate Change Response Act 2002.
Were the climate change implications of granting the permits a mandatory relevant consideration?
Held: No
French and Gilbert JJ
The majority noted that although the seriousness of climate change is beyond argument that does not mean that the Courts can strain legislation to the point that it no longer gives effect to Parliament’s intention.
The majority supported Cooke J’s interpretation of the purpose section (s 1A), that the purpose of the Act was to promote mining and the phrase “for the benefit of New Zealand” was simply Parliament’s indication it desired those activities to take place because they would be of economic benefit to New Zealand. Support for this interpretation was drawn from legislative materials surrounding the section’s enactment, as well as the minerals programme for petroleum. The exploitation focus of the Act was also identified in a number of High Court decisions.
Further French and Gilbert JJ noted the 2018 amendments to the Act — in which sections concerning limiting permits to onshore Taranaki were expressly stated to be “despite” s 1A — and the 2023 amendments — which changed the purpose from to “promote” mining to “manage” mining. In relying on the legislative materials concerning subsequent amendments, the Judges relied on the assumption that if Parliament in drafting legislation does so on the assumption that an earlier Act had a particular meaning, the Court should assume the later Parliament is not mistaken.
French and Gilbert JJ also noted that the phrase “for the benefit of New Zealand” must be considered in its specific context and does not have one singular meaning across the statute book.
In reaching its conclusion that climate change was not a mandatory relevant consideration the majority also relied on the absence of any reference to climate change considerations in the Crown Minerals Act
(including the section specifying what the decision-maker is required to take into account), the minerals programme and the absence of any guidance or machinery to assist the decision-maker in how to consider climate change.
The Judges considered that the granting of the permits at issue did not breach New Zealand’s international obligations, and even if it did, those international obligations could not defeat the clear and unambiguous scheme and purpose of the Crown Minerals Act, to promote mining.
It was noted that prior to making her decision to grant the permits the decision-maker reviewed advice from officials. The advice referred to s 5ZN of the Climate Change Response Act as a permissive consideration and considered that granting the permits would not be inconsistent with New Zealand’s 2050 emissions reduction target. The decision-maker herself said that she had considered climate change considerations were relevant and agreed with the advice given to her.
In the High Court Cooke J held that climate change considerations, including those invited by s 5ZN, were irrelevant in decisions made under the Crown Minerals Act. In finding this he considered the decision-maker’s consideration of climate change matters was nominal.
French and Gilbert JJ declined to consider whether the Judge was wrong that the matters listed in s 5ZN were irrelevant considerations, as it had no impact on the outcome of the appeal. Though they did note the matters were clearly not mandatory.
Mallon J
Mallon J considered that the matters in s 5ZN were permissible considerations, and it was open to the decision-maker to take them into account.
This was because the decision maker was not mandated to allow the permits, the Crown Minerals Act required considerations were not the only considerations which could be taken into account, and the mandatory consideration of Treaty principles indicated and the minerals programme recognised that the benefits to New Zealand did not need to be solely economic. She considered that the Crown Minerals Act did not preclude consideration of the matters listed in s 5ZN and given the climate emergency and the contribution of fossil fuels towards it, it would be odd if the decision-maker was unable to consider climate change in making her decision. Further, she considered that neither case law nor the later amendments of the Crown Minerals Act precluded consideration of s 5ZN when exercising discretion under s 25 of the Crown Minerals Act.
Did the decision-maker fail to have proper regard to the principles of the Treaty of Waitangi?
Held: No.
Section 4 of the Crown Minerals Act, and the principle of legality, required the decision-maker to have regard of the principles of the Treaty of Waitangi. In this case the decision-maker had given regard to the relevant principles, and in line with requirements, affected iwi and hapū had been consulted and actions taken in response to this consultation.
The Court noted that climate change issues were not raised by an iwi or hapū whose rohe overlapped with the permit area and that other Government work programmes were addressing the impact of climate change on Māori. The Court held, as found by Cooke J, the decision-maker was not required to undertake a wide-ranging inquiry into the broad potential climate impacts on Māori, they were being addressed elsewhere. Her decision was to be focused on more localised issues, which she adequately considered. The decision-maker did not backfill her decision.
The appeal was dismissed and no costs award was made.
This appeal concerned a review of the decision, by the delegate of the Minister of Energy and Resources, to grant two petroleum exploration permits under s 25(1) of the Crown Minerals Act 1991.
Students for Climate Solutions Inc challenged the decision to grant the permits in the High Court. It argued the decision-maker was obliged and failed to consider the climate change implications of the decision — either as a mandatory relevant consideration or in having regard to the principles of the Treaty of Waitangi | Te Tiriti o Waitangi, rendering the decision unlawful. These arguments remain substantively the same on appeal. In the High Court Cooke J rejected the arguments. Although he accepted there were genuine climate change issues arising from continuing to grant permits allowing exploration for fossil fuels, he was satisfied having regard to the scheme and purpose of the Act climate change considerations were irrelevant and accordingly the decision to grant the permits was not unreasonable. He acknowledged that the decision-maker was obliged to take into account the principles of the Treaty of Waitangi but held that obligation had been discharged.
The panel agreed the appeal should be dismissed, however Mallon J wrote separate reasons in relation to the relevance of s 5ZN of the Climate Change Response Act 2002.
Were the climate change implications of granting the permits a mandatory relevant consideration?
Held: No
French and Gilbert JJ
The majority noted that although the seriousness of climate change is beyond argument that does not mean that the Courts can strain legislation to the point that it no longer gives effect to Parliament’s intention.
The majority supported Cooke J’s interpretation of the purpose section (s 1A), that the purpose of the Act was to promote mining and the phrase “for the benefit of New Zealand” was simply Parliament’s indication it desired those activities to take place because they would be of economic benefit to New Zealand. Support for this interpretation was drawn from legislative materials surrounding the section’s enactment, as well as the minerals programme for petroleum. The exploitation focus of the Act was also identified in a number of High Court decisions.
Further French and Gilbert JJ noted the 2018 amendments to the Act — in which sections concerning limiting permits to onshore Taranaki were expressly stated to be “despite” s 1A — and the 2023 amendments — which changed the purpose from to “promote” mining to “manage” mining. In relying on the legislative materials concerning subsequent amendments, the Judges relied on the assumption that if Parliament in drafting legislation does so on the assumption that an earlier Act had a particular meaning, the Court should assume the later Parliament is not mistaken.
French and Gilbert JJ also noted that the phrase “for the benefit of New Zealand” must be considered in its specific context and does not have one singular meaning across the statute book.
In reaching its conclusion that climate change was not a mandatory relevant consideration the majority also relied on the absence of any reference to climate change considerations in the Crown Minerals Act
(including the section specifying what the decision-maker is required to take into account), the minerals programme and the absence of any guidance or machinery to assist the decision-maker in how to consider climate change.
The Judges considered that the granting of the permits at issue did not breach New Zealand’s international obligations, and even if it did, those international obligations could not defeat the clear and unambiguous scheme and purpose of the Crown Minerals Act, to promote mining.
It was noted that prior to making her decision to grant the permits the decision-maker reviewed advice from officials. The advice referred to s 5ZN of the Climate Change Response Act as a permissive consideration and considered that granting the permits would not be inconsistent with New Zealand’s 2050 emissions reduction target. The decision-maker herself said that she had considered climate change considerations were relevant and agreed with the advice given to her.
In the High Court Cooke J held that climate change considerations, including those invited by s 5ZN, were irrelevant in decisions made under the Crown Minerals Act. In finding this he considered the decision-maker’s consideration of climate change matters was nominal.
French and Gilbert JJ declined to consider whether the Judge was wrong that the matters listed in s 5ZN were irrelevant considerations, as it had no impact on the outcome of the appeal. Though they did note the matters were clearly not mandatory.
Mallon J
Mallon J considered that the matters in s 5ZN were permissible considerations, and it was open to the decision-maker to take them into account.
This was because the decision maker was not mandated to allow the permits, the Crown Minerals Act required considerations were not the only considerations which could be taken into account, and the mandatory consideration of Treaty principles indicated and the minerals programme recognised that the benefits to New Zealand did not need to be solely economic. She considered that the Crown Minerals Act did not preclude consideration of the matters listed in s 5ZN and given the climate emergency and the contribution of fossil fuels towards it, it would be odd if the decision-maker was unable to consider climate change in making her decision. Further, she considered that neither case law nor the later amendments of the Crown Minerals Act precluded consideration of s 5ZN when exercising discretion under s 25 of the Crown Minerals Act.
Did the decision-maker fail to have proper regard to the principles of the Treaty of Waitangi?
Held: No.
Section 4 of the Crown Minerals Act, and the principle of legality, required the decision-maker to have regard of the principles of the Treaty of Waitangi. In this case the decision-maker had given regard to the relevant principles, and in line with requirements, affected iwi and hapū had been consulted and actions taken in response to this consultation.
The Court noted that climate change issues were not raised by an iwi or hapū whose rohe overlapped with the permit area and that other Government work programmes were addressing the impact of climate change on Māori. The Court held, as found by Cooke J, the decision-maker was not required to undertake a wide-ranging inquiry into the broad potential climate impacts on Māori, they were being addressed elsewhere. Her decision was to be focused on more localised issues, which she adequately considered. The decision-maker did not backfill her decision.
The appeal was dismissed and no costs award was made.
Case number
[2024] NZCA 133
Date of Judgment
26 April 2024
Summary
Fencing of Swimming Pools Act 1987 — Inspections of swimming pool — Negligent misstatement —Novel duty of care — Limitation periods — Appeal allowed
In 2004 the Tasman District Council (the Council) granted building consent for an architecturally designed home oriented around a swimming pool set in a central courtyard. A code compliance certificate (CCC) was issued by the Council in 2006; and in 2008 Ms Louise Buchanan and Mr Keith Marshall purchased the property (the owners). They purchased the property in reliance on the assurances provided by the CCC.
The swimming pool at the property was inspected by the Council in 2009 and 2012 to check that it complied with the Fencing of Swimming Pools Act 1987 (FOSPA). The Council said on both occasions that it did. It was discovered however in 2019, when the owners tried to sell the property, that the property did not comply with FOSPA in a number of respects. The owners undertook remedial work, as required. But this work impaired the amenity of the property and reduced its value.
The Council admitted that it had been negligent in giving building consent in 2004 and providing the CCC in 2006. But it was common ground that claims in negligence in respect of those acts were time-barred by the 10-year longstop in s 393(2) of the Building Act 2004 (2004 Act).
In 2020 the owners brought proceedings against the Council in tort, claiming that the 2009 and 2012 inspections had been negligent, and because of that negligence they had lost the opportunity to sue the Council in respect of its earlier negligence in 2004 and 2006. The owners claimed that the 2009 and 2012 inspections caused them loss equal to the amount they would have recovered if they had successfully sued the Council in respect of the 2004 and 2006 negligence in time.
In the High Court, Palmer J held that the 2009 and 2012 inspections were negligent, and that negligence caused the owners to lose their opportunity to sue in respect of the 2004 and 2006 negligence. The Judge granted declarations that the Council had been negligent in 2004, 2006, 2009 and 2012; and ordered the Council to pay the owners special damages totalling approximately $246,000 and general damages totalling approximately $25,000: Buchanan v Tasman District Council [2023] NZHC 53, [2023] 2 NZLR 287 (High Court judgment).
The Council now appeals from the High Court judgment. Its primary submission is that the purpose of FOSPA, and therefore the inspections in 2009 and 2012, was to protect the safety of young children, not the economic interests of the owners. Therefore any duty which was owed by the Council to the owners when it carried out its 2009 and 2012 inspections did not extend to the type of loss suffered by them.
Held:
Negligent misstatement
The owners’ claims focus on the statements made by the Council after its 2009 and 2012 inspections that the swimming pool complied with FOSPA. It is appropriate to consider the negligent misstatement claim first.
The approach to a claim for negligent misstatement is well established. The requirements which must generally be met to establish sufficient proximity to found a claim are: the advice is required for a purpose that is made known to the adviser; the adviser knows that the advice will be communicated to the advisee; the adviser knows that the advisee is likely to act on the advice without independent inquiry; and the advisee does act on the advice to its detriment.
The purpose of the pool inspections and the statements which followed those inspections was not to assist the owners in identifying rights of recovery against the Council and/or third parties. If the inspector at each of the inspections had been asked why they were inspecting the pool, the answer would have been to ensure the pool did not present a threat to the safety of young children, and more specifically to ensure that the owners had not made changes to the property that affected FOSPA compliance and created a risk to young children. The first requirement is therefore not met.
The second and third requirements are met. But the fourth is not. The owners did not act on the inspections by making a decision not to initiate proceedings against the Council before the time-bar expired. The owners were not contemplating bringing proceedings, and the Council was not aware that its inspections were being relied on to assist the owners to make decisions about such claims. If the inspections had not happened, the position would have been the same as it was after the inspections took place. No new course of action was adopted by the owners after the 2009 and 2012 inspections. The statements were thus not acted on in the relevant sense.
The owners’ claim is in all material respects indistinguishable from the claim struck out by this Court in Attorney-General v Carter [2003] 2 NZLR 160 (CA).
The necessary proximity for a claim for negligent misstatement seeking to recover economic loss suffered by the owners as a result of not bringing timely proceedings against the Council was not present in respect of the 2009 and 2012 inspections. The appeal in relation to this aspect of the owners’ claim must therefore be allowed.
Negligence and damages
Nor have the owners established sufficient proximity between them and the Council in respect of the 2009 and 2012 inspections to found their claim in negligence, for the same reasons set out above. The Council did not, when it carried out those inspections and advised the owners of their outcome, owe the owners any duty to take care to protect them from loss of rights of action against the Council and others. The appeal in relation to this part of the owners’ claim against the Council must also be allowed.
If a duty of care had been owed, the Court would not have disturbed the Judge’s award of special and general damages.
Limitation periods
If the Council owed the owners a duty of care in respect of the 2009 and 2012 inspections, the earliest point the owners could say they suffered loss because of the inspections was when the 10-year longstop provision in the 2004 Act barred a claim based on the Council’s negligence in 2006. That would be in 2016. Arguably however, the owners did not suffer any loss until 2019, when non-compliance of the pool was discovered.
The Limitation Act 1950 applies in relation to the claim based on the 2009 inspection. As the relevant loss was suffered in 2016 at the earliest, which is therefore the earliest point at which the cause of action arose, the six-year limitation in the 1950 Act had not expired when the owners filed their claim in 2020.
The Limitation Act 2010 applies in relation to the claim based on the 2012 inspection. The standard limitation period would have expired in 2018, six years after the act or omission on which the claim is based (the 2012 inspection). However there is a strong argument that the late discovery period of three years provided in s 14 of the 2010 Act would apply, meaning that the limitation period had not expired when the owners filed their claim in 2020.
Declaratory relief
If the owners’ claims had succeeded, this was not a case where it was appropriate to grant declarations in addition to an award of damages, which would have met the need for vindication in the present case. The declarations in respect of the 2004 and 2006 negligence were also precluded by the longstop in s 393(2) of the 2004 Act, which provides that no relief may be granted in respect of civil proceedings once the 10-year longstop applies.
Result
The appeal is allowed.
In 2004 the Tasman District Council (the Council) granted building consent for an architecturally designed home oriented around a swimming pool set in a central courtyard. A code compliance certificate (CCC) was issued by the Council in 2006; and in 2008 Ms Louise Buchanan and Mr Keith Marshall purchased the property (the owners). They purchased the property in reliance on the assurances provided by the CCC.
The swimming pool at the property was inspected by the Council in 2009 and 2012 to check that it complied with the Fencing of Swimming Pools Act 1987 (FOSPA). The Council said on both occasions that it did. It was discovered however in 2019, when the owners tried to sell the property, that the property did not comply with FOSPA in a number of respects. The owners undertook remedial work, as required. But this work impaired the amenity of the property and reduced its value.
The Council admitted that it had been negligent in giving building consent in 2004 and providing the CCC in 2006. But it was common ground that claims in negligence in respect of those acts were time-barred by the 10-year longstop in s 393(2) of the Building Act 2004 (2004 Act).
In 2020 the owners brought proceedings against the Council in tort, claiming that the 2009 and 2012 inspections had been negligent, and because of that negligence they had lost the opportunity to sue the Council in respect of its earlier negligence in 2004 and 2006. The owners claimed that the 2009 and 2012 inspections caused them loss equal to the amount they would have recovered if they had successfully sued the Council in respect of the 2004 and 2006 negligence in time.
In the High Court, Palmer J held that the 2009 and 2012 inspections were negligent, and that negligence caused the owners to lose their opportunity to sue in respect of the 2004 and 2006 negligence. The Judge granted declarations that the Council had been negligent in 2004, 2006, 2009 and 2012; and ordered the Council to pay the owners special damages totalling approximately $246,000 and general damages totalling approximately $25,000: Buchanan v Tasman District Council [2023] NZHC 53, [2023] 2 NZLR 287 (High Court judgment).
The Council now appeals from the High Court judgment. Its primary submission is that the purpose of FOSPA, and therefore the inspections in 2009 and 2012, was to protect the safety of young children, not the economic interests of the owners. Therefore any duty which was owed by the Council to the owners when it carried out its 2009 and 2012 inspections did not extend to the type of loss suffered by them.
Held:
Negligent misstatement
The owners’ claims focus on the statements made by the Council after its 2009 and 2012 inspections that the swimming pool complied with FOSPA. It is appropriate to consider the negligent misstatement claim first.
The approach to a claim for negligent misstatement is well established. The requirements which must generally be met to establish sufficient proximity to found a claim are: the advice is required for a purpose that is made known to the adviser; the adviser knows that the advice will be communicated to the advisee; the adviser knows that the advisee is likely to act on the advice without independent inquiry; and the advisee does act on the advice to its detriment.
The purpose of the pool inspections and the statements which followed those inspections was not to assist the owners in identifying rights of recovery against the Council and/or third parties. If the inspector at each of the inspections had been asked why they were inspecting the pool, the answer would have been to ensure the pool did not present a threat to the safety of young children, and more specifically to ensure that the owners had not made changes to the property that affected FOSPA compliance and created a risk to young children. The first requirement is therefore not met.
The second and third requirements are met. But the fourth is not. The owners did not act on the inspections by making a decision not to initiate proceedings against the Council before the time-bar expired. The owners were not contemplating bringing proceedings, and the Council was not aware that its inspections were being relied on to assist the owners to make decisions about such claims. If the inspections had not happened, the position would have been the same as it was after the inspections took place. No new course of action was adopted by the owners after the 2009 and 2012 inspections. The statements were thus not acted on in the relevant sense.
The owners’ claim is in all material respects indistinguishable from the claim struck out by this Court in Attorney-General v Carter [2003] 2 NZLR 160 (CA).
The necessary proximity for a claim for negligent misstatement seeking to recover economic loss suffered by the owners as a result of not bringing timely proceedings against the Council was not present in respect of the 2009 and 2012 inspections. The appeal in relation to this aspect of the owners’ claim must therefore be allowed.
Negligence and damages
Nor have the owners established sufficient proximity between them and the Council in respect of the 2009 and 2012 inspections to found their claim in negligence, for the same reasons set out above. The Council did not, when it carried out those inspections and advised the owners of their outcome, owe the owners any duty to take care to protect them from loss of rights of action against the Council and others. The appeal in relation to this part of the owners’ claim against the Council must also be allowed.
If a duty of care had been owed, the Court would not have disturbed the Judge’s award of special and general damages.
Limitation periods
If the Council owed the owners a duty of care in respect of the 2009 and 2012 inspections, the earliest point the owners could say they suffered loss because of the inspections was when the 10-year longstop provision in the 2004 Act barred a claim based on the Council’s negligence in 2006. That would be in 2016. Arguably however, the owners did not suffer any loss until 2019, when non-compliance of the pool was discovered.
The Limitation Act 1950 applies in relation to the claim based on the 2009 inspection. As the relevant loss was suffered in 2016 at the earliest, which is therefore the earliest point at which the cause of action arose, the six-year limitation in the 1950 Act had not expired when the owners filed their claim in 2020.
The Limitation Act 2010 applies in relation to the claim based on the 2012 inspection. The standard limitation period would have expired in 2018, six years after the act or omission on which the claim is based (the 2012 inspection). However there is a strong argument that the late discovery period of three years provided in s 14 of the 2010 Act would apply, meaning that the limitation period had not expired when the owners filed their claim in 2020.
Declaratory relief
If the owners’ claims had succeeded, this was not a case where it was appropriate to grant declarations in addition to an award of damages, which would have met the need for vindication in the present case. The declarations in respect of the 2004 and 2006 negligence were also precluded by the longstop in s 393(2) of the 2004 Act, which provides that no relief may be granted in respect of civil proceedings once the 10-year longstop applies.
Result
The appeal is allowed.
Case number
[2024] NZCA 128
Date of Judgment
24 April 2024
Summary
Judicial review - appeal - commissions of inquiry - terms of reference - ultra vires amendment
Appeal dismissed.
The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faithbased Institutions issued a minute stating the Commission's interpretation of its terms of reference led it to conclude that the activities of the Jehovah's Witnesses were within the scope of the Commission's inquiry. The Commission's terms of reference were later amended to expressly state that this was the case. The Christian Congregation of Jehovah's Witnesses (Australasia) Ltd, on behalf of the Jehovah's Witnesses organisation in New Zealand, sought judicial review of both the Commission's initial interpretation of its terms of reference, as set out in Minute 16, and the lawfulness of the amendment to the terms of reference. The High Court dismissed all causes of action. The Jehovah's Witnesses now appeal against the High Court decision.
Whether the High Court erred in finding that the Commission had not exceeded its terms of reference prior to their amendment in September 2023 by conducting inquiries into the Jehovah's Witnesses? Held: No.
The terms of reference provided a detailed definition of "in the care of faith-based institutions" in cl 17.4. Whether an individual is in the care of a faith-based institution is a question of degree and bright-line distinctions are not likely to be able to be drawn. Whilst the activities of the Jehovah's Witnesses may not have been the intended primary focus of the terms of reference, they are not, by definition, excluded from the scope of the Commission's inquiry.
Additionally, the Commission was entitled to undertake its investigations in the course of carrying out its function even if there was no suggestion that the Jehovah's Witnesses had been involved in the abuse of children. The Commission was entitled to pursue the lines of inquiry that it did, including for the very purpose of determining whether the matters it identified were appropriately addressed as part of its report.
Whether the High Court erred in finding that the amendment to the terms of reference was not targeted at the Jehovah's Witnesses in breach of their rights under s 27 of the New Zealand Bill of Rights Act 1990 and therefore promulgated with an unlawful purpose? Held: No.
The amendment was lawfully made. There is no infringement of the s 27 right simply because judicial review proceedings are on foot. It is legitimate to amend the terms of reference to clarify issues in dispute as they arise.
Appeal dismissed.
The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faithbased Institutions issued a minute stating the Commission's interpretation of its terms of reference led it to conclude that the activities of the Jehovah's Witnesses were within the scope of the Commission's inquiry. The Commission's terms of reference were later amended to expressly state that this was the case. The Christian Congregation of Jehovah's Witnesses (Australasia) Ltd, on behalf of the Jehovah's Witnesses organisation in New Zealand, sought judicial review of both the Commission's initial interpretation of its terms of reference, as set out in Minute 16, and the lawfulness of the amendment to the terms of reference. The High Court dismissed all causes of action. The Jehovah's Witnesses now appeal against the High Court decision.
Whether the High Court erred in finding that the Commission had not exceeded its terms of reference prior to their amendment in September 2023 by conducting inquiries into the Jehovah's Witnesses? Held: No.
The terms of reference provided a detailed definition of "in the care of faith-based institutions" in cl 17.4. Whether an individual is in the care of a faith-based institution is a question of degree and bright-line distinctions are not likely to be able to be drawn. Whilst the activities of the Jehovah's Witnesses may not have been the intended primary focus of the terms of reference, they are not, by definition, excluded from the scope of the Commission's inquiry.
Additionally, the Commission was entitled to undertake its investigations in the course of carrying out its function even if there was no suggestion that the Jehovah's Witnesses had been involved in the abuse of children. The Commission was entitled to pursue the lines of inquiry that it did, including for the very purpose of determining whether the matters it identified were appropriately addressed as part of its report.
Whether the High Court erred in finding that the amendment to the terms of reference was not targeted at the Jehovah's Witnesses in breach of their rights under s 27 of the New Zealand Bill of Rights Act 1990 and therefore promulgated with an unlawful purpose? Held: No.
The amendment was lawfully made. There is no infringement of the s 27 right simply because judicial review proceedings are on foot. It is legitimate to amend the terms of reference to clarify issues in dispute as they arise.
Case name
Case number
[2024] NZCA 101
Date of Judgment
10 April 2024
Summary
FAMILY LAW – Practice and procedure, suppression
INJUNCTION – interim injunction
PRACTICE AND PROCEDURE – Contempt of court
This appeal relates to a video documentary, and associated articles, published by Newsroom in 2020. In the High Court an interim injunction was issued the day after publication of the story. The Court of Appeal allowed the appeal, quashed the injunction and reversed the associated costs order.
The documentary concerned the Oranga Tamariki practice of “reverse uplifts”, when Māori tamariki in need of care who had been placed with Pākehā foster parents were several years later removed from those homes and placed with wider whānau of their birth parents. The documentary focused on this practice in a particular case. In that case three Māori siblings had been placed with Pākehā foster parents, as Oranga Tamariki could not find a placement with a Māori whānau where they would all be together. The children had experienced significant trauma prior to placement and Oranga Tamariki concluded they needed a home for life so as not to re-traumatise them with future changes. A fourth sibling was later placed with the foster parents. When ngā tamariki were placed with the foster parents Oranga Tamariki promised it would assist them to provide for the children’s cultural needs. This never occurred.
Throughout the period prior to the removal, Oranga Tamariki had custody and guardianship of the children. This meant Oranga Tamariki was required to provide the Family Court with numerous plans, reviews and reports — updating the Court on how ngā tamariki were doing under the Ministry’s custody and guardianship.
For over a year the foster parents were praised by Oranga Tamariki. However, following the enactment of s 7AA in July 2019 and the allocation of new social workers, concerns were raised about the foster parents’ ability to raise the children and conversations were had with whānau and iwi about placement with them. Oranga Tamariki filed submissions in the Family Court expressing concern about the foster parents’ alleged inability and lack of commitment to promoting the children’s culture, and that the children were being emotionally and psychologically harmed. There were also allegations of physical abuse and racist attitudes. However an independent investigation concluded the allegations were over-stated and there was no abuse. The Court was never told of these findings. Oranga Tamariki approved a relative of the children’s biological mother, and their partner, as whānau caregivers for the children.
The video documentary is 35 minutes long and contains footage of the reverse uplift, an explanation of how and why ngā tamariki came to live with the foster parents, the allegations made against the foster parents, details of a complaint the foster parents made against Oranga Tamariki to the Ombudsman which was upheld, interviews with experts, information relating to the introduction of s 7AA, an interview with the foster parents, a recording of a meeting between the foster parents and Oranga Tamariki staff, and details of what occurred after the removal of ngā tamariki from the foster parents.
The Solicitor-General considered the documentary breached s 11B(3) of the Family Court Act, amounting to contempt of court, as in her opinion it contained identifying information relating to a young person without the leave of the Court. She successfully applied for an interim injunction the day after publication and the documentary and articles have been publicly unavailable since then. Newsroom appealed the decision granting the injunction and a subsequent costs judgment.
The appeal concerned two key issues. First, do the impugned publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B? Secondly, if they do constitute a report of proceedings do they contain identifying information as per s 11C?
The Court first traversed the background to s 11B. Noting that in Television New Zealand v Solicitor-General this Court held that the word “proceedings” was not synonymous with “hearings”, and accordingly a ban on reports of Family Court proceedings (in place prior to s 11B) was not limited to reports of what went on in the courtroom but encompassed all matters before a court from the initiation of a case, through all its phases, to termination.
Did the publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B?
Held: Yes.
As in the High Court, the Court found that the publications did constitute a report of proceedings in the Family Court.
The Court outlaid the impact of the publications and noted that the story was clearly one of public interest. Part of the story’s impact came from its depiction of real-life events and emotions. Important too was not only the media’s right of freedom of expression, but also the foster parents’ right to tell their story and the public’s right to hear it. The Court considered the Judge overstated the role of the Family Court in the case. The Family Court did not make all the ultimate decisions in the case. The decisions to place ngā tamariki with the foster parents, to reverse the home for life policy, to implement the reverse uplift policy, the selection of the whānau caregivers and the removal of the children from the foster parents were all made by Oranga Tamariki.
Despite that, the Court held that relatively little content in the publication fell outside the scope of a “report of proceedings”. Television New Zealand remained good law as there was no suggestion that the legislature intended to depart from the judicially established meaning of the phrase. The normal and ordinary reading of the section and BORA considerations also supported that interpretation. Although the opinions of experts, misrepresentations made to the foster parents in a meeting with Oranga Tamariki and the children’s status as foster children would fall outside the scope of s 11B, the reasons for making custody/guardianship orders, misrepresentations in the court record and the content of the various plans and reviews were within the section’s scope. Despite not ultimately making the decisions, the Family Court exercised a reasonably significant degree of oversight. The publications were therefore reports of proceedings in the Family Court.
Did the publications contain identifying information as per s 11C?
Held: No.
The scheme of s 11B is that a report of any proceedings in the Family Court is not permitted without the leave of the Court if the report includes identifying information where a person under the age of 18 years is the subject of the proceedings or is referred to in proceedings. In this case ngā tamariki clearly came within that scope.
In the High Court the Judge concluded that the proceedings did contain identifying information. The cumulative effect of a number of features meant there was an appreciable risk that people in the children’s/foster parents’ wider community would identify them.
The Court agreed with the Judge’s formulation of “likely”, in the statutory phrase “likely to lead to the identification”, as meaning “an appreciable risk”. It agreed too that the anonymisation of names alone was not sufficient, as the section also specifies “particulars”. It also agreed there is a causative element, if the information capable of identifying the children is already known to the audience it must follow that publication of that information will not breach s 11B.
However, the Court disagreed with the Judge’s application of the test. It considered the fact the foster parents lived in a very small rural community and that the daily lives of the four Māori tamariki were visible were important and meant the decisions that had been made about them in the proceedings were self-evident to those who knew them. The details of the case would have been a major talking point in the small community, which was supportive of the foster parents’ cause, and the members of the community would have been aware of the critical features of the publications. This was especially so given the removal was witnessed by several members of the community. The local community was unlikely to have learnt anything new from the publications. A submission from the Solicitor-General that the foster father’s workmates would recognise him/his house was too speculative and involved only a small class of people. The Court did not consider the children’s North Island community would necessarily draw the inferences required to identify them without further information from ngā tamariki or their whānau.
The Court held that the publications did not contain any identifying information of ngā tamariki or connected persons. The proceedings never named ngā tamariki, the foster parents or their location (other than it was in the South Island and that the whānau caregivers live in the North Island), and the children and foster parents’ faces are blurred as are identifying particulars such as the name of a school on a lunch box.
The Court did not express a concluded view as to whether the Judge should have clarified the potentially offending aspects of the publications and identified possible remediation.
The appeal was allowed and the injunction quashed. The costs in the High Court were reversed and the respondent was ordered to pay the appellant’s costs.
INJUNCTION – interim injunction
PRACTICE AND PROCEDURE – Contempt of court
This appeal relates to a video documentary, and associated articles, published by Newsroom in 2020. In the High Court an interim injunction was issued the day after publication of the story. The Court of Appeal allowed the appeal, quashed the injunction and reversed the associated costs order.
The documentary concerned the Oranga Tamariki practice of “reverse uplifts”, when Māori tamariki in need of care who had been placed with Pākehā foster parents were several years later removed from those homes and placed with wider whānau of their birth parents. The documentary focused on this practice in a particular case. In that case three Māori siblings had been placed with Pākehā foster parents, as Oranga Tamariki could not find a placement with a Māori whānau where they would all be together. The children had experienced significant trauma prior to placement and Oranga Tamariki concluded they needed a home for life so as not to re-traumatise them with future changes. A fourth sibling was later placed with the foster parents. When ngā tamariki were placed with the foster parents Oranga Tamariki promised it would assist them to provide for the children’s cultural needs. This never occurred.
Throughout the period prior to the removal, Oranga Tamariki had custody and guardianship of the children. This meant Oranga Tamariki was required to provide the Family Court with numerous plans, reviews and reports — updating the Court on how ngā tamariki were doing under the Ministry’s custody and guardianship.
For over a year the foster parents were praised by Oranga Tamariki. However, following the enactment of s 7AA in July 2019 and the allocation of new social workers, concerns were raised about the foster parents’ ability to raise the children and conversations were had with whānau and iwi about placement with them. Oranga Tamariki filed submissions in the Family Court expressing concern about the foster parents’ alleged inability and lack of commitment to promoting the children’s culture, and that the children were being emotionally and psychologically harmed. There were also allegations of physical abuse and racist attitudes. However an independent investigation concluded the allegations were over-stated and there was no abuse. The Court was never told of these findings. Oranga Tamariki approved a relative of the children’s biological mother, and their partner, as whānau caregivers for the children.
The video documentary is 35 minutes long and contains footage of the reverse uplift, an explanation of how and why ngā tamariki came to live with the foster parents, the allegations made against the foster parents, details of a complaint the foster parents made against Oranga Tamariki to the Ombudsman which was upheld, interviews with experts, information relating to the introduction of s 7AA, an interview with the foster parents, a recording of a meeting between the foster parents and Oranga Tamariki staff, and details of what occurred after the removal of ngā tamariki from the foster parents.
The Solicitor-General considered the documentary breached s 11B(3) of the Family Court Act, amounting to contempt of court, as in her opinion it contained identifying information relating to a young person without the leave of the Court. She successfully applied for an interim injunction the day after publication and the documentary and articles have been publicly unavailable since then. Newsroom appealed the decision granting the injunction and a subsequent costs judgment.
The appeal concerned two key issues. First, do the impugned publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B? Secondly, if they do constitute a report of proceedings do they contain identifying information as per s 11C?
The Court first traversed the background to s 11B. Noting that in Television New Zealand v Solicitor-General this Court held that the word “proceedings” was not synonymous with “hearings”, and accordingly a ban on reports of Family Court proceedings (in place prior to s 11B) was not limited to reports of what went on in the courtroom but encompassed all matters before a court from the initiation of a case, through all its phases, to termination.
Did the publications constitute “a report of proceedings in the Family Court” within the meaning of s 11B?
Held: Yes.
As in the High Court, the Court found that the publications did constitute a report of proceedings in the Family Court.
The Court outlaid the impact of the publications and noted that the story was clearly one of public interest. Part of the story’s impact came from its depiction of real-life events and emotions. Important too was not only the media’s right of freedom of expression, but also the foster parents’ right to tell their story and the public’s right to hear it. The Court considered the Judge overstated the role of the Family Court in the case. The Family Court did not make all the ultimate decisions in the case. The decisions to place ngā tamariki with the foster parents, to reverse the home for life policy, to implement the reverse uplift policy, the selection of the whānau caregivers and the removal of the children from the foster parents were all made by Oranga Tamariki.
Despite that, the Court held that relatively little content in the publication fell outside the scope of a “report of proceedings”. Television New Zealand remained good law as there was no suggestion that the legislature intended to depart from the judicially established meaning of the phrase. The normal and ordinary reading of the section and BORA considerations also supported that interpretation. Although the opinions of experts, misrepresentations made to the foster parents in a meeting with Oranga Tamariki and the children’s status as foster children would fall outside the scope of s 11B, the reasons for making custody/guardianship orders, misrepresentations in the court record and the content of the various plans and reviews were within the section’s scope. Despite not ultimately making the decisions, the Family Court exercised a reasonably significant degree of oversight. The publications were therefore reports of proceedings in the Family Court.
Did the publications contain identifying information as per s 11C?
Held: No.
The scheme of s 11B is that a report of any proceedings in the Family Court is not permitted without the leave of the Court if the report includes identifying information where a person under the age of 18 years is the subject of the proceedings or is referred to in proceedings. In this case ngā tamariki clearly came within that scope.
In the High Court the Judge concluded that the proceedings did contain identifying information. The cumulative effect of a number of features meant there was an appreciable risk that people in the children’s/foster parents’ wider community would identify them.
The Court agreed with the Judge’s formulation of “likely”, in the statutory phrase “likely to lead to the identification”, as meaning “an appreciable risk”. It agreed too that the anonymisation of names alone was not sufficient, as the section also specifies “particulars”. It also agreed there is a causative element, if the information capable of identifying the children is already known to the audience it must follow that publication of that information will not breach s 11B.
However, the Court disagreed with the Judge’s application of the test. It considered the fact the foster parents lived in a very small rural community and that the daily lives of the four Māori tamariki were visible were important and meant the decisions that had been made about them in the proceedings were self-evident to those who knew them. The details of the case would have been a major talking point in the small community, which was supportive of the foster parents’ cause, and the members of the community would have been aware of the critical features of the publications. This was especially so given the removal was witnessed by several members of the community. The local community was unlikely to have learnt anything new from the publications. A submission from the Solicitor-General that the foster father’s workmates would recognise him/his house was too speculative and involved only a small class of people. The Court did not consider the children’s North Island community would necessarily draw the inferences required to identify them without further information from ngā tamariki or their whānau.
The Court held that the publications did not contain any identifying information of ngā tamariki or connected persons. The proceedings never named ngā tamariki, the foster parents or their location (other than it was in the South Island and that the whānau caregivers live in the North Island), and the children and foster parents’ faces are blurred as are identifying particulars such as the name of a school on a lunch box.
The Court did not express a concluded view as to whether the Judge should have clarified the potentially offending aspects of the publications and identified possible remediation.
The appeal was allowed and the injunction quashed. The costs in the High Court were reversed and the respondent was ordered to pay the appellant’s costs.
Case name
Case number
[2024] NZCA 92
Date of Judgment
09 April 2024
Summary
In CA371/2021, Attorney-General v Fleming, the appeal is allowed and the cross-appeal is dismissed.
In CA742/2021, Attorney-General v Humphreys, the appeal is allowed in part.
Employment Law. Definition of homeworker. Definition of work. Personal grievance. Penalty.
These appeals concern the basis on which the care of adult disabled people by family members has been funded since 2013. Ms Fleming and Mr Humphreys both care for their adult disabled children. Since 2013, they have received funding to do so in different forms. They each brought proceedings seeking declarations that they are employees of the Ministry of Health (MOH) in relation to the care they provide. In addition, Ms Fleming advanced a personal grievance claim, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement. The Employment Court held that Ms Fleming and Mr Humphreys were both employees of the MOH and made declarations to that effect. However, it declined to award compensation to Ms Fleming and declined to impose a penalty on the Crown. The Crown appealed both decisions. Ms Fleming cross-appealed.
On the agreed issues for determination the Court concluded:
(a) Was Ms Fleming a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH, when she cared for her son?
Ms Fleming was not a “homeworker” as defined by s 5 of the ERA when she cared for Mr Coote.
(b) Was the Employment Court wrong in finding that the “well-established test for what constitutes work” as set out in Idea Services applies to Ms Fleming?
The Employment Court erred in finding that the “well-established test for what constitutes work” as set out in Idea Services applied to Ms Fleming.
(c) Did the Employment Court err in finding that Ms Fleming had a personal grievance for discrimination?
The Employment Court erred in finding that Ms Fleming had a personal grievance.
(d) Did the Employment Court err in finding that the MOH was not permitted under a family care policy or expressly authorised under any enactment to pay Ms Fleming for work she did during the time of pt 4A of the PHDA?
Part 4A precluded Ms Fleming from recovering arrears of wages and holiday pay.
(e) Did the Employment Court err in failing to consider the imposition of a penalty under s 134 of the ERA?
The Employment Court did not err in failing to consider the imposition of a penalty under s 134 of the ERA.
(f) What is the level of knowledge required to establish a breach of an employment agreement for the purposes of s 134 of the ERA?
It has proven unnecessary to consider this question.
(g) Did the Employment Court err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme?
The Employment Court did not err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme.
(h) Was Mr Humphreys a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH when he cared for his daughter during (i) the FFC period (April 2014 to August 2020) and (ii) the IF period (August 2020 onwards)?
Mr Humphreys (i) was a homeworker as defined in s 5 of the ERA and therefore an employee of the MOH when he cared for Ms Humphreys during the FFC period and (ii) was not a homeworker as defined in s 5 of the ERA when he cared for Ms Humphreys during the IF period.
(i) Was the Employment Court wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for (i) the FFC period and/or (ii) the IF period?The Employment Court was wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for the FFC and/or IF periods.
The Court made no order as to costs.
In CA742/2021, Attorney-General v Humphreys, the appeal is allowed in part.
Employment Law. Definition of homeworker. Definition of work. Personal grievance. Penalty.
These appeals concern the basis on which the care of adult disabled people by family members has been funded since 2013. Ms Fleming and Mr Humphreys both care for their adult disabled children. Since 2013, they have received funding to do so in different forms. They each brought proceedings seeking declarations that they are employees of the Ministry of Health (MOH) in relation to the care they provide. In addition, Ms Fleming advanced a personal grievance claim, seeking back pay, compensation and interest, and the imposition of a penalty on the Crown for breaches of its statutory obligations and the asserted employment agreement. The Employment Court held that Ms Fleming and Mr Humphreys were both employees of the MOH and made declarations to that effect. However, it declined to award compensation to Ms Fleming and declined to impose a penalty on the Crown. The Crown appealed both decisions. Ms Fleming cross-appealed.
On the agreed issues for determination the Court concluded:
(a) Was Ms Fleming a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH, when she cared for her son?
Ms Fleming was not a “homeworker” as defined by s 5 of the ERA when she cared for Mr Coote.
(b) Was the Employment Court wrong in finding that the “well-established test for what constitutes work” as set out in Idea Services applies to Ms Fleming?
The Employment Court erred in finding that the “well-established test for what constitutes work” as set out in Idea Services applied to Ms Fleming.
(c) Did the Employment Court err in finding that Ms Fleming had a personal grievance for discrimination?
The Employment Court erred in finding that Ms Fleming had a personal grievance.
(d) Did the Employment Court err in finding that the MOH was not permitted under a family care policy or expressly authorised under any enactment to pay Ms Fleming for work she did during the time of pt 4A of the PHDA?
Part 4A precluded Ms Fleming from recovering arrears of wages and holiday pay.
(e) Did the Employment Court err in failing to consider the imposition of a penalty under s 134 of the ERA?
The Employment Court did not err in failing to consider the imposition of a penalty under s 134 of the ERA.
(f) What is the level of knowledge required to establish a breach of an employment agreement for the purposes of s 134 of the ERA?
It has proven unnecessary to consider this question.
(g) Did the Employment Court err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme?
The Employment Court did not err in its assessment of the effect of pt 4A and s 88 of the PHDA on its ability to assess the employment relationship under the FFC scheme.
(h) Was Mr Humphreys a “homeworker” as defined by s 5 of the ERA, and therefore an employee of the MOH when he cared for his daughter during (i) the FFC period (April 2014 to August 2020) and (ii) the IF period (August 2020 onwards)?
Mr Humphreys (i) was a homeworker as defined in s 5 of the ERA and therefore an employee of the MOH when he cared for Ms Humphreys during the FFC period and (ii) was not a homeworker as defined in s 5 of the ERA when he cared for Ms Humphreys during the IF period.
(i) Was the Employment Court wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for (i) the FFC period and/or (ii) the IF period?The Employment Court was wrong in finding (if it did) that this Court’s approach in Idea Services applies to an assessment of hours worked by Mr Humphreys as a homeworker for the FFC and/or IF periods.
The Court made no order as to costs.
Case name
Case number
[2023] NZCA 589
Summary
The appeals are dismissed.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.
The appellants seek to prevent the broadcast of a programme alleging serious sexual abuse by Cardinal John Dew and others. The abuse is said to have occurred over a 12-day period in 1997 at St Joseph's Orphanage in Upper Hutt. Cardinal Dew was at that time a priest at St Joseph's Parish; Mrs R was responsible for the boys' dormitory at the Orphanage; and Sister H lived and worked in Palmerston North (though she lived at St Joseph's in 1976 and again in 1979). The complainants, Mr Carvell and Ms Carvell, wish to have the allegations, which are the subject of an ongoing police investigation, aired in public by media platforms associated with the respondent, Discovery NZ Ltd. To this end they have been in communication with two investigative journalists at Newshub, who have investigated their complaints for almost two months. The complainants also successfully applied to the District Court under s 203(3)(b) of the Criminal Procedure Act 2011 to waive their automatic right to name suppression. Discovery has signalled that should the appellants sue in defamation, it will rely on the defences of truth and responsible communication on a matter of public interest. The appellants were unsuccessful in applications for an injunction to restrain the broadcast in the High Court.
Defamation -interim injunction -human rights -privacy -practice and procedure -
suppression order. Should the appeals be allowed?
Cardinal Dew's appeal
Should publication be restrained on the basis that it is defamatory?
It was for the appellant to establish that there was no reasonable possibility of its signalled defences succeeding. He had not done so. In terms of the defence of truth, the substance of the allegations had been put before the Court and, should the proceedings go to trial, it would be for the trier of fact to determine whether the complainants' allegations or Cardinal Dew's denials should be accepted. This was a factual question that could not be resolved at this stage. Nor, in terms of the defence of responsible communication on a matter of public interest, could the appellant establish there was no reasonable possibility of success: the subject matter was of public interest, the allegations are extremely serious and are of considerable importance. There was no urgency and it was not possible to make any findings about reliability, the tone of the programme or its balance. Those were issues that would need to be assessed in deciding at the trial whether the broadcast was responsible.
Was the District Court judgment dispositive?
The order made by the District Court judgment, issued in respect of the complainants' application to lift their automatic statutory name suppression, was not determinative. The District Court did not have jurisdiction to make an order prohibiting publication of the proceedings under s 205(1) of the Criminal Procedure Act because no "proceeding in respect of an offence", commenced under s 15( 1) by filing a charging document in the District Court, had been commenced. The Judge also knew that the application was made to enable the complainants to "go public". Properly construed, the order prohibited publication of the fact there was a judgment repeating the evidence given by the complainants in that proceeding.
Should publication be restrained on the basis it would interfere with the administration of justice?
Though publication of the allegations would likely result in intense and lasting publicity, that did not justify prior restraint. The jury will be required to put pre-trial publicity out of mind, to avoid prejudice and to decide the case based only on what they have heard in the courtroom. The system is predicated on an assumption that juries comply with the instructions they are given. It cannot be assumed that a fair jury trial could not take place; to do so would call into question that assumption. The Court was not satisfied that suppression orders would be made if charges were brought and, in any event, it was not possible to assess the probability that charges would be laid. In those circumstances, to prevent publication would be to guard against an eventuality that might never occur.
Should publication be restrained on the basis it amounts to an invasion of privacy?
Cardinal Dew could not claim a reasonable expectation of privacy in respect of the allegations, because he denied that they occurred. Moreover, if the allegations were true, any privacy claim of Cardinal Dew must yield to the complainants' right to speak about serious wrongdoing which occurred to them. Nor would the programme's reference to an ongoing police investigation amount to an interference with a reasonable expectation of privacy: the programme will focus on Discovery's investigation, not that of the Police. The programme will not contain an account of suspicions and preliminary conclusions formed by an organ of the state.
Mrs R and Sister H's appeals
Should publication be restrained on the basis that it is defamatory?
There were two imputations said to arise from the programme: first, that either Mrs R or Sister H were the unnamed sister which may be mentioned as having participated in the alleged abuse; and secondly, that Mrs R, as the person who oversaw the boys' dormitory of the Orphanage at the relevant time, must have known about what is said to have occurred, and failed to put a stop to it.
Neither of the appellants would be identified, and therefore defamed, by the first imputation. The programme will not allege that the person responsible for the abuse resided at the Orphanage (indeed, it is clear that Sister H did not reside there at the relevant time, and she was the person originally named by Mr Carvell). Provided it did not do so, there would be no room for any inference that Mrs R was the unnamed sister. In any event, evidence about the layout of the dormitory fell well short of the kind of extrinsic evidence that would be necessary to establish that Mrs R was the unnamed sister. As for Sister H, who will not be named in the programme, unless the programme includes details which might reasonably lead people acquainted with her to believe she is the unnamed sister referred to, all persons familiar with her history could do would be to speculate. She was simply one of many members of the Sisters of Mercy across the country who did not live at St Joseph's at the relevant time. Equally, though interviewees had been asked about her and might therefore speculate she was the unnamed sister, that is all it would be.
As for the second imputation, it was possible that viewers with knowledge of Mrs R's role at the Orphanage would infer that she must have been aware of the alleged abuse, if the allegations were sufficiently particularised in the story. She had provided evidence that the abuse described could not have occurred without her being aware of it, which is the kind of evidence that Discovery has indicated it would include in the programme. Should it do so, identifying Mrs R would not involve impermissible speculation.
It was therefore necessary to consider Discovery's defences to a claim in defamation by Mrs R. Both defences had reasonable prospects. In terms of the defence of truth, the allegations which potentially implicate Mrs R are substantially derived from what is alleged against Cardinal Dew. If Discovery succeeds in establishing the truth of its allegations against him, it will necessarily have gone a long way to establishing the truth of the imputation against Mrs R. The additional facts it would need to successfully claim truth against her would be that she knew of Cardinal Dew's conduct and did nothing to prevent it. In relation to those additional facts Discovery could rely on her own evidence, in which she effectively claims that if Cardinal Dew had acted as Mr Carvell alleges, she would have known. In terms of the defence of responsible communication on a matter of public interest, the story was in the public interest, and, in assessing whether the communication is responsible an additional consideration would be that the imputation has not been put to Mrs R. But that additional factor did not mean the defence had no reasonable prospect of success.
Media Release
- MR [2023] NZCA 589 (PDF, 226 KB)