Court of Appeal Judgments of Public Interest
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Case number
[2024] NZCA 419
Date of Judgment
05 September 2024
Summary
Three strikes -third strike -mandatory maximum sentence -arbitrary detention -criminal sentencing -New Zealand Bill of Rights Act -compensation -prosecutorial discretion
Result: appeal allowed. Judgment of the High Court set aside. There is no order for costs.
Background: Mr Fitzgerald was prosecuted for indecent assault. At the time, indecent assault was, for Mr Fitzgerald, his third strike under the three strikes regime. Accordingly, the sentencing Judge imposed the maximum penalty, being seven years' imprisonment. Mr Fitzgerald appealed unsuccessfully to this Court, but successfully to the Supreme Court. The Supreme Court held that the seven-year term breached Mr Fitzgerald's right under s 9 of the New Zealand Bill of Rights Act 1990 not to subject to disproportionately severe punishment. A rights-consistent interpretation of three strikes meant it should be read as subject to the proviso that the maximum sentence should not be imposed if it would breach s 9. Mr Fitzgerald's sentence had therefore been imposed in error of law. Mr Fitzgerald was resentenced to a term of six months' imprisonment, which by that stage he had already served.
Mr Fitzgerald then bought a claim in damages against the Crown based on the breach of his s 9 right. In the High Court, Ellis J held that, at the point where Mr Fitzgerald's detention became grossly disproportionate to his offending, his continued detention became arbitrary, and in breach of the right not to be arbitrarily detained in s 22 of the Bill of Rights Act. She assessed this arbitrary detention as being for approximately 44 months. The Judge held the breach was the consequence of the action of the Crown prosecutor laying the charge of indecent assault. The prosecutor had a duty to prefer a different charge where proceeding with the charge of indecent assault would result in the foreseeable and likely (because of the operation of the three strikes regime as then understood) grossly disproportionate sentence. She awarded Mr Fitzgerald $450,000 in damages together with interest.
The Attorney-General appealed.
Issue: did the Judge err in finding the Crown prosecutor was liable for the breach of Mr Fitzgerald's s 9 right not to be subject to grossly disproportionate treatment, and that Mr Fitzgerald should be compensated by way of a damages award?
Held: Yes. The sentence ultimately imposed, and the corresponding breach of Mr Fitzgerald's rights, was the act of the sentencing Judge, not the prosecutor. Once the charge had been laid, it was open to the sentencing Judge to not sentence Mr Fitzgerald to the maximum term, in accordance with the approach taken by the Supreme Court in Mr Fitzgerald's sentence appeal, and accordingly avoid the breach of Mr Fitzgerald's rights. The prosecutor cannot be liable for the breach of Mr Fitzgerald's rights as a result of the sentence imposed by the sentencing Judge.
There are instances where courts can inquire into exercises of prosecutorial discretion. When selecting a charge, a prosecutor should be mindful of the Solicitor-General's Prosecution Guidelines and Bill of Rights Act considerations. However, the result of that review cannot be to require a prosecutor not to proceed with an (otherwise appropriate) charge because of the mandatory minimum sentence legislated by Parliament. In the present case, as the likely penalty was the only factor pointing away from prosecution, which in any event is a matter for the sentencing Judge, the decision to proceed with the charge of indecent assault cannot be criticised.
Miller J provided further reasons on causation. Miller J concluded that the length of Mr Fitzgerald's detention could be attributed to judicial decision: first to impose the sentence, and then to uphold it on appeal, necessitating a second appeal to the Supreme Court. Likewise, the length of time taken between the second and first sentences was too remote to be attributed to the prosecutor's original decision to pursue the indecent assault charge.
Result: appeal allowed. Judgment of the High Court set aside. There is no order for costs.
Background: Mr Fitzgerald was prosecuted for indecent assault. At the time, indecent assault was, for Mr Fitzgerald, his third strike under the three strikes regime. Accordingly, the sentencing Judge imposed the maximum penalty, being seven years' imprisonment. Mr Fitzgerald appealed unsuccessfully to this Court, but successfully to the Supreme Court. The Supreme Court held that the seven-year term breached Mr Fitzgerald's right under s 9 of the New Zealand Bill of Rights Act 1990 not to subject to disproportionately severe punishment. A rights-consistent interpretation of three strikes meant it should be read as subject to the proviso that the maximum sentence should not be imposed if it would breach s 9. Mr Fitzgerald's sentence had therefore been imposed in error of law. Mr Fitzgerald was resentenced to a term of six months' imprisonment, which by that stage he had already served.
Mr Fitzgerald then bought a claim in damages against the Crown based on the breach of his s 9 right. In the High Court, Ellis J held that, at the point where Mr Fitzgerald's detention became grossly disproportionate to his offending, his continued detention became arbitrary, and in breach of the right not to be arbitrarily detained in s 22 of the Bill of Rights Act. She assessed this arbitrary detention as being for approximately 44 months. The Judge held the breach was the consequence of the action of the Crown prosecutor laying the charge of indecent assault. The prosecutor had a duty to prefer a different charge where proceeding with the charge of indecent assault would result in the foreseeable and likely (because of the operation of the three strikes regime as then understood) grossly disproportionate sentence. She awarded Mr Fitzgerald $450,000 in damages together with interest.
The Attorney-General appealed.
Issue: did the Judge err in finding the Crown prosecutor was liable for the breach of Mr Fitzgerald's s 9 right not to be subject to grossly disproportionate treatment, and that Mr Fitzgerald should be compensated by way of a damages award?
Held: Yes. The sentence ultimately imposed, and the corresponding breach of Mr Fitzgerald's rights, was the act of the sentencing Judge, not the prosecutor. Once the charge had been laid, it was open to the sentencing Judge to not sentence Mr Fitzgerald to the maximum term, in accordance with the approach taken by the Supreme Court in Mr Fitzgerald's sentence appeal, and accordingly avoid the breach of Mr Fitzgerald's rights. The prosecutor cannot be liable for the breach of Mr Fitzgerald's rights as a result of the sentence imposed by the sentencing Judge.
There are instances where courts can inquire into exercises of prosecutorial discretion. When selecting a charge, a prosecutor should be mindful of the Solicitor-General's Prosecution Guidelines and Bill of Rights Act considerations. However, the result of that review cannot be to require a prosecutor not to proceed with an (otherwise appropriate) charge because of the mandatory minimum sentence legislated by Parliament. In the present case, as the likely penalty was the only factor pointing away from prosecution, which in any event is a matter for the sentencing Judge, the decision to proceed with the charge of indecent assault cannot be criticised.
Miller J provided further reasons on causation. Miller J concluded that the length of Mr Fitzgerald's detention could be attributed to judicial decision: first to impose the sentence, and then to uphold it on appeal, necessitating a second appeal to the Supreme Court. Likewise, the length of time taken between the second and first sentences was too remote to be attributed to the prosecutor's original decision to pursue the indecent assault charge.
Media Release
- MR [2024] NZCA 419 (PDF, 213 KB)
Case name
Case number
[2024] NZCA 403
Date of Judgment
26 August 2024
Summary
Employment Relations Act 2000, s 214 – Employment Relations Act, s 6 – Employment status of Uber drivers – Approach to s 6 of the Employment Relations Act – Appeal dismissed
Four Uber drivers sought declarations of their employment status in the Employment Court. Chief Judge Inglis granted a declaration that the four Uber drivers were employees of one or more of the appellant companies for the purposes of the Employment Relations Act 2000 (ERA): E Tū Inc v Rasier Operations BV [2022] NZEmpC 192, (2022) 19 NZELR 475 (EC judgment).
Leave was granted for the appellant companies (Uber) to appeal from the EC judgment to this Court under s 214 of the ERA on the following questions of law:
a) Did the Employment Court err by misdirecting itself on the application of s 6 of the ERA, which sets out the definition of the term “employee” for the purposes of the ERA?
b) Did the Employment Court err by misapplying the test in s 6, or was the Court’s conclusion so insupportable as to amount to an error of law?
c) Did the Employment Court err in finding that joint employment may arise in New Zealand simply as a result of a number of entities being sufficiently connected and exercising common control over an employee? This issue was not pursued by Uber at the hearing of the appeal.
Uber submitted that the Chief Judge’s observations and her application of s 6 involved misdirections and errors of law. Uber argued that her approach was inconsistent with the text of s 6 and with the guidance provided by the Supreme Court in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721. The respondent unions submitted that Uber had misconstrued the aspects of the EC judgment it was criticising, and the EC judgment reflected an orthodox approach to the interpretation and application of s 6 of the ERA by reference to the Supreme Court's guidance in Bryson. Business New Zealand and the New Zealand Council of Trade Unions were granted leave to intervene and provided submissions on the operation of s 6 in the context of new ways of working involving online platforms.
Held: the appeal is dismissed.
Did the Employment Court err by misdirecting itself on the application of s 6 of the ERA?
As the Supreme Court noted in Bryson, s 6 of the ERA incorporates the legal concept of a contract of service, and defines an employee in terms which largely reflect the common law. As a matter of common law prior to the ERA being enacted, it was well established that in determining whether a contract was a contract of service, the focus must be on the substance of the parties’ mutual rights and obligations, considered objectively and in light of all the surrounding circumstances, and whether the key substantive features of a contract of service are present. The courts developed three tests to assist in resolving this question: the control test, the integration test, and the fundamental test (was the worker providing services in the course of carrying on business on their own account?)
In applying s 6, it is helpful to distinguish between two stages in the inquiry. The first stage involves identifying the substance of the parties’ mutual rights and obligations as a matter of reality. The second stage involves determining whether those rights and obligations amount to a contract of service by applying the common law test for what qualifies as a contract of service to the real (substantive) relationship between the parties. That test turns on the control test, the integration test, and the fundamental test.
Section 6 reinforces the common law requirement to focus on the substance of the parties’ agreement when determining their mutual rights and obligations and emphasises the importance of the real nature of the relationship, ascertained by reference to how that relationship operates in practice. Labels used by the parties are not determinative. Provisions in the agreement which are designed to convey the impression that the relationship of the parties differs from what it is as a matter of substance and reality must be set to one side. An employer cannot use their superior bargaining power to include in a contract of service, frequently proffered on a “take it or leave it” basis, labels or other terms designed to make that contract appear to be something other than that which it in reality is.
This Court has concluded that the Chief Judge misdirected herself in the way she framed the s 6 test; in failing to take as a starting point of the inquiry the express terms of the agreement and other relevant contractual documents; and in the approach she adopted to the common law tests.
In framing the s 6 test, the Chief Judge placed emphasis on the perceived vulnerability of the drivers, and encapsulated the test as being whether, construed purposively, s 6 was intended to apply to the relationship between Uber and drivers when viewed realistically. This approach risks distracting attention from the well-established tests. The Chief Judge placed a gloss on the s 6 test as explained in Bryson which adds unnecessary complexity and uncertainty. This is an error of law.
As regards the contractual documents, the Chief Judge touched on some of the terms in the agreement between Uber and the drivers, and some of the other contractual documents in her analysis. But the Chief Judge did not begin her analysis by reviewing the relevant features of those documents with a view to ascertaining the substance and nature of the agreement as recorded; and she did not systematically review the substance of the parties’ rights and obligations by reference to the three common law tests. Given the nature of Uber’s argument that drivers operate their own transportation service business, and do not provide transportation services to Uber, but rather to riders and eaters, it was necessary for the Chief Judge to closely consider the contractual matrix to understand and characterise the relationship between the parties.
The Chief Judge “infused” the three limbs of the common law test into her (differently structured) inquiries. It would have been more helpful to deploy the test explicitly, but such a reordering would not have been a misdirection in and of itself were it not for the way the fundamental test was framed, which was in terms of “who benefitted from the work undertaken by the ... drivers” and “who was working for whose interests”. This formulation is materially different from the proper formulation of the fundamental test, and would lead to an overly broad approach to who is an employee.
Whether one focuses on the specific aspects of the Chief Judge’s approach or the overall thrust of the judgment, there were material misdirections in relation to the s 6 test. The answer to question 1 is “yes”.
Did the Employment Court err by misapplying the test in s 6, or was the Court’s conclusion so insupportable as to amount to an error of law?
It is unnecessary to answer this question in light of the answer to question 1.
Applying the s 6 test to the four drivers
This Court was urged by Uber and the respondent unions to go on and apply the correct test under s 6 of the ERA if we considered the Chief Judge had misdirected herself in relation to that test, or erred in law in its application. We are satisfied that it is appropriate to do so. This Court has all the relevant evidence, there is no material factual contest between the parties, and it is in the interests of justice that the question be determined now.
The starting point is the matrix of documents with contractual effect, because the s 6 inquiry is concerned with the real nature of the parties’ substantive mutual rights and obligations. The agreement between Uber and drivers, and the associated documents, are all drafted by Uber, and are put to drivers on a take it or leave it basis. They are complex and sophisticated, and reflect Uber’s preferred view of the relationship between it, drivers and riders.
Leaving to one side the express provisions about the nature of the relationship between Uber and drivers, the substantive rights and obligations described in the agreement between Uber and drivers do not on their face appear to give rise to an employment relationship because the agreement is not a contract under which drivers do work for hire or reward. But when the agreement is reviewed against the reality of the relationship between Uber and drivers, many of the provisions designed to point away from employee status are window dressing. Uber has a high level of unilateral control over the documents with contractual force and over the day-to-day operation of the relationship, in a manner and to an extent which renders ineffective many of the rights which drivers appear to have on the face of the agreement.
Section 6(3)(a) requires the court to have regard to any matters that indicate the intention of the parties. Labels placed on the relationship are not determinative, as s 6(3)(b) confirms. This reference to the intention of the parties must be a reference to the parties’ common intention about the substance of the parties’ mutual rights and obligations, objectively ascertained. It is not a reference to the parties’ separate subjective intentions about employment status. In this case we do not consider that there are any indications of the parties’ common intention that provide material assistance, other than the indications of intention implicit in the objectively ascertained mutual rights and obligations of the parties having regard to the contractual matrix and the realities of the parties’ relationship.
Applying the common law tests – control, integration, and the fundamental test – Uber exercises some control over when and where drivers log in, and when they log out, through various incentive structures. But drivers have control over whether they drive for Uber, and when and where they work. The limited extent of control exercised by Uber when a driver is not logged in is inconsistent with employment at those times. But when a driver is logged into the Uber driver app, Uber exercises a high level of control over nearly every facet of the manner in which a driver provides services to riders, and over the payment for those services. This level of control while a driver is logged in is consistent with an employment relationship during those periods.
The integration test assesses the extent to which the individual is “part and parcel” of, or integrated into, the relevant business. While traditional forms of integration – uniforms, vehicles having Uber signage, and drivers congregating in the same place to work together – are not present, drivers are integral to Uber’s business and are the public face of the Uber brand. Overall, we do not consider integration is a strong indicator in relation to employment status in the present case.
Turning to the fundamental test, there are a number of factors that are consistent with drivers operating their own business. However when one focusses on the realities of the relationship, it is clear that drivers are not in business on their own account. Critically, while a driver is logged into the Uber driver app, they have no opportunity to establish any business goodwill of their own, or to influence the quantity and quality of the work they receive, and the revenue from that work, except to the extent that Uber facilitates that. They cannot bargain with Uber for preference in relation to access to ride requests, information about rides, or supplementary payments. Drivers cannot in reality be said to be carrying on transport service businesses on their own account when they are logged into the Uber driver app.
In respect of the four drivers, the s 6 test was therefore met. The real nature of the relationship between the drivers and Uber was that they were employees of Uber at the times they were logged into the Uber driver app. The conclusion reached by the Chief Judge was correct. The appeal is dismissed.
Four Uber drivers sought declarations of their employment status in the Employment Court. Chief Judge Inglis granted a declaration that the four Uber drivers were employees of one or more of the appellant companies for the purposes of the Employment Relations Act 2000 (ERA): E Tū Inc v Rasier Operations BV [2022] NZEmpC 192, (2022) 19 NZELR 475 (EC judgment).
Leave was granted for the appellant companies (Uber) to appeal from the EC judgment to this Court under s 214 of the ERA on the following questions of law:
a) Did the Employment Court err by misdirecting itself on the application of s 6 of the ERA, which sets out the definition of the term “employee” for the purposes of the ERA?
b) Did the Employment Court err by misapplying the test in s 6, or was the Court’s conclusion so insupportable as to amount to an error of law?
c) Did the Employment Court err in finding that joint employment may arise in New Zealand simply as a result of a number of entities being sufficiently connected and exercising common control over an employee? This issue was not pursued by Uber at the hearing of the appeal.
Uber submitted that the Chief Judge’s observations and her application of s 6 involved misdirections and errors of law. Uber argued that her approach was inconsistent with the text of s 6 and with the guidance provided by the Supreme Court in Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721. The respondent unions submitted that Uber had misconstrued the aspects of the EC judgment it was criticising, and the EC judgment reflected an orthodox approach to the interpretation and application of s 6 of the ERA by reference to the Supreme Court's guidance in Bryson. Business New Zealand and the New Zealand Council of Trade Unions were granted leave to intervene and provided submissions on the operation of s 6 in the context of new ways of working involving online platforms.
Held: the appeal is dismissed.
Did the Employment Court err by misdirecting itself on the application of s 6 of the ERA?
As the Supreme Court noted in Bryson, s 6 of the ERA incorporates the legal concept of a contract of service, and defines an employee in terms which largely reflect the common law. As a matter of common law prior to the ERA being enacted, it was well established that in determining whether a contract was a contract of service, the focus must be on the substance of the parties’ mutual rights and obligations, considered objectively and in light of all the surrounding circumstances, and whether the key substantive features of a contract of service are present. The courts developed three tests to assist in resolving this question: the control test, the integration test, and the fundamental test (was the worker providing services in the course of carrying on business on their own account?)
In applying s 6, it is helpful to distinguish between two stages in the inquiry. The first stage involves identifying the substance of the parties’ mutual rights and obligations as a matter of reality. The second stage involves determining whether those rights and obligations amount to a contract of service by applying the common law test for what qualifies as a contract of service to the real (substantive) relationship between the parties. That test turns on the control test, the integration test, and the fundamental test.
Section 6 reinforces the common law requirement to focus on the substance of the parties’ agreement when determining their mutual rights and obligations and emphasises the importance of the real nature of the relationship, ascertained by reference to how that relationship operates in practice. Labels used by the parties are not determinative. Provisions in the agreement which are designed to convey the impression that the relationship of the parties differs from what it is as a matter of substance and reality must be set to one side. An employer cannot use their superior bargaining power to include in a contract of service, frequently proffered on a “take it or leave it” basis, labels or other terms designed to make that contract appear to be something other than that which it in reality is.
This Court has concluded that the Chief Judge misdirected herself in the way she framed the s 6 test; in failing to take as a starting point of the inquiry the express terms of the agreement and other relevant contractual documents; and in the approach she adopted to the common law tests.
In framing the s 6 test, the Chief Judge placed emphasis on the perceived vulnerability of the drivers, and encapsulated the test as being whether, construed purposively, s 6 was intended to apply to the relationship between Uber and drivers when viewed realistically. This approach risks distracting attention from the well-established tests. The Chief Judge placed a gloss on the s 6 test as explained in Bryson which adds unnecessary complexity and uncertainty. This is an error of law.
As regards the contractual documents, the Chief Judge touched on some of the terms in the agreement between Uber and the drivers, and some of the other contractual documents in her analysis. But the Chief Judge did not begin her analysis by reviewing the relevant features of those documents with a view to ascertaining the substance and nature of the agreement as recorded; and she did not systematically review the substance of the parties’ rights and obligations by reference to the three common law tests. Given the nature of Uber’s argument that drivers operate their own transportation service business, and do not provide transportation services to Uber, but rather to riders and eaters, it was necessary for the Chief Judge to closely consider the contractual matrix to understand and characterise the relationship between the parties.
The Chief Judge “infused” the three limbs of the common law test into her (differently structured) inquiries. It would have been more helpful to deploy the test explicitly, but such a reordering would not have been a misdirection in and of itself were it not for the way the fundamental test was framed, which was in terms of “who benefitted from the work undertaken by the ... drivers” and “who was working for whose interests”. This formulation is materially different from the proper formulation of the fundamental test, and would lead to an overly broad approach to who is an employee.
Whether one focuses on the specific aspects of the Chief Judge’s approach or the overall thrust of the judgment, there were material misdirections in relation to the s 6 test. The answer to question 1 is “yes”.
Did the Employment Court err by misapplying the test in s 6, or was the Court’s conclusion so insupportable as to amount to an error of law?
It is unnecessary to answer this question in light of the answer to question 1.
Applying the s 6 test to the four drivers
This Court was urged by Uber and the respondent unions to go on and apply the correct test under s 6 of the ERA if we considered the Chief Judge had misdirected herself in relation to that test, or erred in law in its application. We are satisfied that it is appropriate to do so. This Court has all the relevant evidence, there is no material factual contest between the parties, and it is in the interests of justice that the question be determined now.
The starting point is the matrix of documents with contractual effect, because the s 6 inquiry is concerned with the real nature of the parties’ substantive mutual rights and obligations. The agreement between Uber and drivers, and the associated documents, are all drafted by Uber, and are put to drivers on a take it or leave it basis. They are complex and sophisticated, and reflect Uber’s preferred view of the relationship between it, drivers and riders.
Leaving to one side the express provisions about the nature of the relationship between Uber and drivers, the substantive rights and obligations described in the agreement between Uber and drivers do not on their face appear to give rise to an employment relationship because the agreement is not a contract under which drivers do work for hire or reward. But when the agreement is reviewed against the reality of the relationship between Uber and drivers, many of the provisions designed to point away from employee status are window dressing. Uber has a high level of unilateral control over the documents with contractual force and over the day-to-day operation of the relationship, in a manner and to an extent which renders ineffective many of the rights which drivers appear to have on the face of the agreement.
Section 6(3)(a) requires the court to have regard to any matters that indicate the intention of the parties. Labels placed on the relationship are not determinative, as s 6(3)(b) confirms. This reference to the intention of the parties must be a reference to the parties’ common intention about the substance of the parties’ mutual rights and obligations, objectively ascertained. It is not a reference to the parties’ separate subjective intentions about employment status. In this case we do not consider that there are any indications of the parties’ common intention that provide material assistance, other than the indications of intention implicit in the objectively ascertained mutual rights and obligations of the parties having regard to the contractual matrix and the realities of the parties’ relationship.
Applying the common law tests – control, integration, and the fundamental test – Uber exercises some control over when and where drivers log in, and when they log out, through various incentive structures. But drivers have control over whether they drive for Uber, and when and where they work. The limited extent of control exercised by Uber when a driver is not logged in is inconsistent with employment at those times. But when a driver is logged into the Uber driver app, Uber exercises a high level of control over nearly every facet of the manner in which a driver provides services to riders, and over the payment for those services. This level of control while a driver is logged in is consistent with an employment relationship during those periods.
The integration test assesses the extent to which the individual is “part and parcel” of, or integrated into, the relevant business. While traditional forms of integration – uniforms, vehicles having Uber signage, and drivers congregating in the same place to work together – are not present, drivers are integral to Uber’s business and are the public face of the Uber brand. Overall, we do not consider integration is a strong indicator in relation to employment status in the present case.
Turning to the fundamental test, there are a number of factors that are consistent with drivers operating their own business. However when one focusses on the realities of the relationship, it is clear that drivers are not in business on their own account. Critically, while a driver is logged into the Uber driver app, they have no opportunity to establish any business goodwill of their own, or to influence the quantity and quality of the work they receive, and the revenue from that work, except to the extent that Uber facilitates that. They cannot bargain with Uber for preference in relation to access to ride requests, information about rides, or supplementary payments. Drivers cannot in reality be said to be carrying on transport service businesses on their own account when they are logged into the Uber driver app.
In respect of the four drivers, the s 6 test was therefore met. The real nature of the relationship between the drivers and Uber was that they were employees of Uber at the times they were logged into the Uber driver app. The conclusion reached by the Chief Judge was correct. The appeal is dismissed.
Case number
[2024] NZCA 401
Date of Judgment
22 August 2024
Summary
Practice and procedure — Solicitor-General’s reference — Question of law — Dog Control Act 1996
Case number
[2024] NZCA 386
Date of Judgment
16 August 2024
Summary
The Employment Court has held that employees should get "make-up pay" under the New Zealand Steel Ltd collective agreement with E Tū Inc, where they are requested to work outside their established ordinary hours of work and, as a result, cannot complete their ordinary hours.
The Court of Appeal has granted leave for New Zealand Steel Ltd to appeal the judgment on the question of whether the Employment Court erred in law by interpreting the collective agreement in light of past practice which was disputed and a proposed amendment that was not agreed.
The Court of Appeal has granted leave for New Zealand Steel Ltd to appeal the judgment on the question of whether the Employment Court erred in law by interpreting the collective agreement in light of past practice which was disputed and a proposed amendment that was not agreed.
Case number
[2024] NZCA 340
Date of Judgment
23 July 2024
Summary
Civil procedure - interlocutory application - interim relief - publication
Application declined.
This Court dismissed the appellant's appeal on 24 April 2024. The appellant has applied for leave to appeal to the Supreme Court, but that application is yet to be determined. The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions has since completed its inquiries and its report is scheduled to be tabled in the House of Representatives on Wednesday 24 July 2024. The appellant seeks interim orders pursuant to r 30(2)(b) of the Supreme Court Rules 2004 that a section of the report concerning the Jehovah's Witnesses not be published anywhere (including on the Royal Commission's website) or referred to, or reported on, or disclosed, until the appellant's appeal to the Supreme Court is decided.
Whether the application for interim relief should be granted? Held: No.
The proposed orders can be seen as necessary to preserve the appellant's position. However, interim relief would not be appropriate in this case. The appellant's prospects of success on the appeal to the Supreme Court are low. The finalisation and publication of the report is a matter of considerable public interest. The appellant has delayed significantly in making this application.
The form of the orders sought raise significant comity issues.
Application declined.
This Court dismissed the appellant's appeal on 24 April 2024. The appellant has applied for leave to appeal to the Supreme Court, but that application is yet to be determined. The Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-Based Institutions has since completed its inquiries and its report is scheduled to be tabled in the House of Representatives on Wednesday 24 July 2024. The appellant seeks interim orders pursuant to r 30(2)(b) of the Supreme Court Rules 2004 that a section of the report concerning the Jehovah's Witnesses not be published anywhere (including on the Royal Commission's website) or referred to, or reported on, or disclosed, until the appellant's appeal to the Supreme Court is decided.
Whether the application for interim relief should be granted? Held: No.
The proposed orders can be seen as necessary to preserve the appellant's position. However, interim relief would not be appropriate in this case. The appellant's prospects of success on the appeal to the Supreme Court are low. The finalisation and publication of the report is a matter of considerable public interest. The appellant has delayed significantly in making this application.
The form of the orders sought raise significant comity issues.
Case name
Case number
[2024] NZCA 332
Date of Judgment
19 July 2024
Summary
The Court of Appeal has allowed Niklas Gebhardt's appeal against sentence. The Court substituted his original sentence with one of four years and three months' imprisonment and a disqualification from driving for one year and six months from the date of his release from prison.
Case number
[2024] NZCA 330
Date of Judgment
19 July 2024
Summary
Practice and procedure - Class action - Representative Proceedings - Jurisdiction - Common fund order
The appellants' appeal is allowed in part, insofar as it relates to the High Court's decision to decline to grant a CFO. The remaining grounds of appeal are dismissed.
The cross-appeals of the first and second respondents are dismissed.
We make the CFOs on the terms sought by the appellants, set out at [99]-[100], and direct that they are to commence immediately.
The respondents together must pay the appellants one set of costs, in respect of the appeal and two cross-appeals, for a complex appeal on a band A basis and usual disbursements. We certify for second counsel.
Between 30 May 2015 and 28 May 2016, ANZ Bank NZ Ltd (ANZ), the first respondent, sent loan-variation letters to customers who had a home or personal loan with ANZ and made an agreed change to their loan in this period. ANZ accepted that its variation notices breached s 9C(2)(a)(iii) or the Credit Contracts and Consumers Finance Act 2003 (CCCFA). The second appellants took out a home loan with ANZ on 7 August 2015.
In September 2019, ASB Bank Ltd (ASB), the second respondent, notified the Commerce Commission that between 6 June 2015 and 18 June 2019 it had not consistently provided clients with disclosure information required by the CCCFA. The affected ASB customers fell into two categories: Cohort A and B. ASB accepted it had breached s 9C(2)(a)(iii) of the CCCFA. The first and third to fifth appellants (the ASB appellants) were members of either Cohort A or B.
The High Court granted the ASB appellants leave to bring a proceeding against ASB on behalf of themselves and other affected customers; granted the second appellants leave to bring a proceeding against ANZ on behalf of themselves and affected customers who entered into loans between 6 June 2015 and 28 May 2016; ruled that the representative proceedings be brought on an opt-out rather than opt-in basis; and concluded the High Court has jurisdiction to make a common fund order (CFO), but declined the appellants' application to make an order at that stage of proceedings.
The appeal and cross-appeals raise issues about the scope of representative actions and the High Court's jurisdiction to make a CFO in representative proceedings.
Issue I: Did the High Court err in making the representative order made in respect of the ASB appellants? Held: No.
First. the making of a representative order under r 4.34 of the High Court Rules 2016 was justified, as all members of the class held loans with ASB which were required to be the subject of variation notices during the relevant period; and share a common interest in resolving the meaning of s 22 of the CCCFA. Second, the grant of the representative order supports access to justice. Third, ASB will not suffer injustice nor be denied a viable defence. Finally, the nature of this proceeding is such that it is just and convenient to allow the claim to continue on a representative basis.
Issue 2: Did the High Court err in declining to extend the ANZ representative class to affected customers whose loans commenced before 6 June 2015? Held: No.
The High Court was correct to limit the ANZ representative order. No ANZ customers whose loans commenced before 6 June have been added as plaintiffs to the proceeding. If a pre-6-June-2015 ANZ plaintiff was added to the proceeding, ANZ would move to strike out the claim on limitation grounds. Extending the ANZ representative class to customers whose loans commenced before 6 June 2015 would deprive ANZ of a valid defence.
Issue 3: In the event the ASB representative order was not made in error, should it have been made on an opt-in rather than opt-out basis? Held: No.
The ASB representative order was correctly made on an opt-out basis. An opt-in order would have the effect of frustrating access to justice by placing unnecessary hurdles in front of those who are entitled to be members of the representative class. Class members can confirm their loans were credit contracts at stage two of the proceedings. Neither would an opt-out order hinder the court and parties in addressing issues needed to advance the litigation.
Issue 4: Did the High Court err in finding that the High Court has jurisdiction to make CFOs in representative proceedings? Held: No.
The considerations that govern the making of a CFO involved mixed issues of procedure and substantive law. The High Court Rules permit the making of a CFO. Rule 4.24, interpreted in light of s 146(4) of the Senior Courts Act 2016, and rr 1.2 and 1.6 of the High Court Rules, is broad enough to enable the High Court to issue an order that ensures the benefits of a successful representative proceeding is shared fairly between the representative plaintiff and all class members. Further, as a court of equity, the High Court has jurisdiction to do justice as between the plaintiff and those who benefit through the success of the plaintiff's proceedings.
Issue 5: If the High Court does have jurisdiction to make CFOs, did it err in declining to make the CFOs sought by the plaintiffs at this stage of the proceeding? Held: Yes.
There is no clear benefit in deferring making a CFO at an early stage of this proceeding. The Court therefore allows the aspect of the appellants' appeal relating to the High Court's decision to decline to grant a CFO at that stage.
The appellants' appeal is allowed in part, insofar as it relates to the High Court's decision to decline to grant a CFO. The remaining grounds of appeal are dismissed.
The cross-appeals of the first and second respondents are dismissed.
We make the CFOs on the terms sought by the appellants, set out at [99]-[100], and direct that they are to commence immediately.
The respondents together must pay the appellants one set of costs, in respect of the appeal and two cross-appeals, for a complex appeal on a band A basis and usual disbursements. We certify for second counsel.
Between 30 May 2015 and 28 May 2016, ANZ Bank NZ Ltd (ANZ), the first respondent, sent loan-variation letters to customers who had a home or personal loan with ANZ and made an agreed change to their loan in this period. ANZ accepted that its variation notices breached s 9C(2)(a)(iii) or the Credit Contracts and Consumers Finance Act 2003 (CCCFA). The second appellants took out a home loan with ANZ on 7 August 2015.
In September 2019, ASB Bank Ltd (ASB), the second respondent, notified the Commerce Commission that between 6 June 2015 and 18 June 2019 it had not consistently provided clients with disclosure information required by the CCCFA. The affected ASB customers fell into two categories: Cohort A and B. ASB accepted it had breached s 9C(2)(a)(iii) of the CCCFA. The first and third to fifth appellants (the ASB appellants) were members of either Cohort A or B.
The High Court granted the ASB appellants leave to bring a proceeding against ASB on behalf of themselves and other affected customers; granted the second appellants leave to bring a proceeding against ANZ on behalf of themselves and affected customers who entered into loans between 6 June 2015 and 28 May 2016; ruled that the representative proceedings be brought on an opt-out rather than opt-in basis; and concluded the High Court has jurisdiction to make a common fund order (CFO), but declined the appellants' application to make an order at that stage of proceedings.
The appeal and cross-appeals raise issues about the scope of representative actions and the High Court's jurisdiction to make a CFO in representative proceedings.
Issue I: Did the High Court err in making the representative order made in respect of the ASB appellants? Held: No.
First. the making of a representative order under r 4.34 of the High Court Rules 2016 was justified, as all members of the class held loans with ASB which were required to be the subject of variation notices during the relevant period; and share a common interest in resolving the meaning of s 22 of the CCCFA. Second, the grant of the representative order supports access to justice. Third, ASB will not suffer injustice nor be denied a viable defence. Finally, the nature of this proceeding is such that it is just and convenient to allow the claim to continue on a representative basis.
Issue 2: Did the High Court err in declining to extend the ANZ representative class to affected customers whose loans commenced before 6 June 2015? Held: No.
The High Court was correct to limit the ANZ representative order. No ANZ customers whose loans commenced before 6 June have been added as plaintiffs to the proceeding. If a pre-6-June-2015 ANZ plaintiff was added to the proceeding, ANZ would move to strike out the claim on limitation grounds. Extending the ANZ representative class to customers whose loans commenced before 6 June 2015 would deprive ANZ of a valid defence.
Issue 3: In the event the ASB representative order was not made in error, should it have been made on an opt-in rather than opt-out basis? Held: No.
The ASB representative order was correctly made on an opt-out basis. An opt-in order would have the effect of frustrating access to justice by placing unnecessary hurdles in front of those who are entitled to be members of the representative class. Class members can confirm their loans were credit contracts at stage two of the proceedings. Neither would an opt-out order hinder the court and parties in addressing issues needed to advance the litigation.
Issue 4: Did the High Court err in finding that the High Court has jurisdiction to make CFOs in representative proceedings? Held: No.
The considerations that govern the making of a CFO involved mixed issues of procedure and substantive law. The High Court Rules permit the making of a CFO. Rule 4.24, interpreted in light of s 146(4) of the Senior Courts Act 2016, and rr 1.2 and 1.6 of the High Court Rules, is broad enough to enable the High Court to issue an order that ensures the benefits of a successful representative proceeding is shared fairly between the representative plaintiff and all class members. Further, as a court of equity, the High Court has jurisdiction to do justice as between the plaintiff and those who benefit through the success of the plaintiff's proceedings.
Issue 5: If the High Court does have jurisdiction to make CFOs, did it err in declining to make the CFOs sought by the plaintiffs at this stage of the proceeding? Held: Yes.
There is no clear benefit in deferring making a CFO at an early stage of this proceeding. The Court therefore allows the aspect of the appellants' appeal relating to the High Court's decision to decline to grant a CFO at that stage.
Case number
[2024] NZCA 316
Date of Judgment
15 July 2024
Summary
Judicial review – Local Government Act
The application for leave to file further evidence is granted. The appeal is allowed. We make a declaration that the Wellington City Council’s decision-making processes in relation to the Decision did not comply with the Council’s obligations under s 77(1) of the Local Government Act 2002 (the LGA). The respondent must pay the appellant costs for a standard appeal on a band A basis together with usual disbursements. We certify for two counsel.
Thorndon Quay Collective Inc (TQC) is a collective of local businesses operating on or near Thorndon Quay in Wellington. The Council made a decision to reconfigure parking on Thorndon Quay from mainly angled parking to entirely parallel parking in order to enhance cyclist safety (the Decision). TQC filed a judicial review proceeding in the High Court challenging aspects of the Council’s decision-making processes.
The High Court found that none of TQC’s grounds of review had been made out under the LGA and accordingly dismissed the application. TQC now appeals.
Issue 1: Whether the Judge erred in his interpretation of s 76(3) of the LGA? Held: Yes, in part.
The Judge’s initial description of the decision-making requirements of s 76 of the LGA was inaccurate. However, this did not impact the outcome of the case, as the Judge’s analysis of TQC’s judicial review causes of action was consistent with the correct interpretation of s 76(3). The appeal judgment clarifies the correct interpretation of s 76(3).
Issue 2: Whether the Judge erred in finding that the Council had complied with its obligations under s 77(1) of the LGA? Held: Yes.
Section 77(1) of the LGA requires local authorities to seek to identify all reasonably practicable options for the achievement of the objective of a decision (here, cyclist safety) and to assess those options in terms of their advantages and disadvantages. Here, various potential options for addressing cyclist safety on Thorndon Quay, including those submitted by TQC, were reviewed and assessed by the Council’s Transport and Infrastructure Manager and his team. Only their recommended option, however, was submitted to the Planning and Environment Committee (the Planning Committee), the Council’s delegated decision-maker, for consideration. Such a process came perilously close to an unlawful sub-delegation and may well have resulted in the Planning Committee not having sufficient information to properly discharge its s 77(1) obligation to identify and assess all reasonably practicable options to improve cyclist safety on Thorndon Quay.
Issue 3: Whether the Judge erred in finding that the Council had complied with the information requirements for consultation under s 82 of the LGA? Held: No.
If the Council had complied with its s 77(1) obligation, which the Court found it did not, s 82A would not have applied to the consultation process the Council undertook in respect of the proposed traffic resolution.
Issue 4: Whether the Judge erred in finding that the Council had met the requirements of s 79 of the LGA? Held: No.
Given the large number of decisions that must be made by local authorities, of varying degrees of significance, the Court did not accept that s 79 necessarily envisages or requires local authorities to adopt a high level of formality when making the required “judgments” under s 79 as to how to best discharge its decision-making obligations. It can be inferred from the process the Planning Committee followed that it made judgments to the effect that the process it followed was appropriate in all the circumstances.
Issue 5: What is the appropriate relief?
The appropriate relief is a declaration that the Council’s decision-making processes did not comply with its obligations under s 77(1) of the LGA. The Court found that it was not appropriate to quash the Decision or direct that the angled parking on Thorndon Quay be restored. Matters have moved on since the Decision was made in 2021, and it appears that the Decision has largely been superseded by subsequent events and decisions that would have required the removal of the angled parking in any event. Further (and importantly), the evidence before the Court from road safety experts is that the road configuration prior to the Decision was unsafe and that the current configuration provides a greater degree of safety for cyclists. Even if the Decision had not been superseded by subsequent events (and therefore required reconsideration in accordance with a proper s 77(1) process), it would not therefore have been in the public interest to order the reinstatement of angled parking on Thorndon Quay pending any further reconsideration of the Decision. Rather, the declaration made, together with the guidance given in the judgment, should ensure that any future decisions made by the Council in relation to the Thorndon Quay/Hutt Rd Project will be made in accordance with a process that complies with the Council’s obligations under s 77(1) of the LGA.
The application for leave to file further evidence is granted. The appeal is allowed. We make a declaration that the Wellington City Council’s decision-making processes in relation to the Decision did not comply with the Council’s obligations under s 77(1) of the Local Government Act 2002 (the LGA). The respondent must pay the appellant costs for a standard appeal on a band A basis together with usual disbursements. We certify for two counsel.
Thorndon Quay Collective Inc (TQC) is a collective of local businesses operating on or near Thorndon Quay in Wellington. The Council made a decision to reconfigure parking on Thorndon Quay from mainly angled parking to entirely parallel parking in order to enhance cyclist safety (the Decision). TQC filed a judicial review proceeding in the High Court challenging aspects of the Council’s decision-making processes.
The High Court found that none of TQC’s grounds of review had been made out under the LGA and accordingly dismissed the application. TQC now appeals.
Issue 1: Whether the Judge erred in his interpretation of s 76(3) of the LGA? Held: Yes, in part.
The Judge’s initial description of the decision-making requirements of s 76 of the LGA was inaccurate. However, this did not impact the outcome of the case, as the Judge’s analysis of TQC’s judicial review causes of action was consistent with the correct interpretation of s 76(3). The appeal judgment clarifies the correct interpretation of s 76(3).
Issue 2: Whether the Judge erred in finding that the Council had complied with its obligations under s 77(1) of the LGA? Held: Yes.
Section 77(1) of the LGA requires local authorities to seek to identify all reasonably practicable options for the achievement of the objective of a decision (here, cyclist safety) and to assess those options in terms of their advantages and disadvantages. Here, various potential options for addressing cyclist safety on Thorndon Quay, including those submitted by TQC, were reviewed and assessed by the Council’s Transport and Infrastructure Manager and his team. Only their recommended option, however, was submitted to the Planning and Environment Committee (the Planning Committee), the Council’s delegated decision-maker, for consideration. Such a process came perilously close to an unlawful sub-delegation and may well have resulted in the Planning Committee not having sufficient information to properly discharge its s 77(1) obligation to identify and assess all reasonably practicable options to improve cyclist safety on Thorndon Quay.
Issue 3: Whether the Judge erred in finding that the Council had complied with the information requirements for consultation under s 82 of the LGA? Held: No.
If the Council had complied with its s 77(1) obligation, which the Court found it did not, s 82A would not have applied to the consultation process the Council undertook in respect of the proposed traffic resolution.
Issue 4: Whether the Judge erred in finding that the Council had met the requirements of s 79 of the LGA? Held: No.
Given the large number of decisions that must be made by local authorities, of varying degrees of significance, the Court did not accept that s 79 necessarily envisages or requires local authorities to adopt a high level of formality when making the required “judgments” under s 79 as to how to best discharge its decision-making obligations. It can be inferred from the process the Planning Committee followed that it made judgments to the effect that the process it followed was appropriate in all the circumstances.
Issue 5: What is the appropriate relief?
The appropriate relief is a declaration that the Council’s decision-making processes did not comply with its obligations under s 77(1) of the LGA. The Court found that it was not appropriate to quash the Decision or direct that the angled parking on Thorndon Quay be restored. Matters have moved on since the Decision was made in 2021, and it appears that the Decision has largely been superseded by subsequent events and decisions that would have required the removal of the angled parking in any event. Further (and importantly), the evidence before the Court from road safety experts is that the road configuration prior to the Decision was unsafe and that the current configuration provides a greater degree of safety for cyclists. Even if the Decision had not been superseded by subsequent events (and therefore required reconsideration in accordance with a proper s 77(1) process), it would not therefore have been in the public interest to order the reinstatement of angled parking on Thorndon Quay pending any further reconsideration of the Decision. Rather, the declaration made, together with the guidance given in the judgment, should ensure that any future decisions made by the Council in relation to the Thorndon Quay/Hutt Rd Project will be made in accordance with a process that complies with the Council’s obligations under s 77(1) of the LGA.
Case name
Case number
[2024] NZCA 300
Date of Judgment
09 July 2024
Summary
CRIMINAL LAW – Governor-General’s reference – Miscarriage of justice – Proviso
Under the proviso to s 385(1) of the Crimes Act 1961, the Court was satisfied beyond reasonable doubt that Mr Tamihere murdered Mr Höglin and Ms Paakkonen in April 1989. Accordingly, the Court declined to exercise its jurisdiction under s 406(1)(a) to quash Mr Tamihere’s convictions.
On 5 December 1990, Mr Tamihere was convicted of the murders of Mr Höglin and Ms Paakkonen, tourists from Sweden who disappeared in bush country on the Coromandel Peninsula after last being seen in Thames on 7 April 1989.
The Crown’s theory at trial was that Mr Tamihere, who was living in the bush at the time, murdered the couple somewhere near Crosbies Clearing, north of Thames. Its case included the eyewitness evidence of two trampers, John Cassidy and Theodore Knauf. They identified Mr Tamihere as the man they encountered at Crosbies Clearing with a young, blonde, European-looking woman, a description which would fit Ms Paakkonen, at around 3 pm on 8 April 1989. Witnesses saw Mr Höglin and Ms Paakkonen’s car parked at the end of Tararu Creek Road, which is the nearest place by car to Crosbies Clearing, on 9 April. Mr Tamihere admitted stealing their car from there and dumping or selling their possessions. The Crown case was otherwise circumstantial.
In 2020, the Governor-General referred Mr Tamihere’s convictions to the Court of Appeal to decide whether a miscarriage of justice may have occurred. If it had, the Court would quash his convictions unless it found that the evidence proved his guilt beyond reasonable doubt.
Two events since the trial led to the reference. The first was that, more than two years after he disappeared, Mr Höglin’s skeletal remains were found in bush in Wentworth Valley, which is a considerable distance from Crosbies Clearing and the end of Tararu Creek Road. Ms Paakkonen’s remains have never been found. The second was that the Crown case included evidence from a prison informant, Robert Conchie Harris, that Mr Tamihere had disclosed that he had almost been “sprung” by “a couple” while he was in the bush with Ms Paakkonen. That account tended to corroborate the trampers’ identifications. Mr Harris was convicted in 2019 of perjury in connection with that evidence. Taken together, the reference said these two events may raise doubts about the accuracy of the trampers’ identifications.
The Court considered evidence which was new in the sense that the jury had not heard it. It comprised evidence tending to show that, contrary to his account to police, Mr Tamihere was in the Wentworth Valley area about the time the Swedish couple went missing.
The Court found that the admission of Mr Harris’s evidence at Mr Tamihere’s trial may have affected the jury’s verdicts and accordingly amounted to a miscarriage of justice. It also differed from the Court’s reasoning in Mr Tamihere’s 1992 conviction appeal, which was argued after Mr Höglin’s remains were found.
However, the error did not justify setting the convictions aside. The Court found under the proviso to s 385(1) of the Crimes Act that no substantial miscarriage of justice occurred. That is so because the other evidence proved beyond reasonable doubt that it was Mr Tamihere who murdered Mr Höglin and Ms Paakkonen.
The Court found that the trampers’ visual identifications were reliable but, having regard to unsatisfactory circumstances in which the identifications were first made, their visual identification evidence would not have proved Mr Tamihere’s identity beyond reasonable doubt if it was the only evidence identifying him as the man they encountered at Crosbies Clearing.
However, the identifications were strongly supported by other reliable evidence from a number of sources. The other evidence included the finding at Mr Tamihere’s home of distinctive items remarked on by the trampers, his use of the couple’s key to gain access to their car, the finding of Ms Paakkonen’s wallet and jacket between Tararu Creek Road and Crosbies Clearing, his treatment of the couple’s property at Tararu Creek Road, his admissions when confronted with evidence he could not explain away, and certain proven lies. The judgment examines this other evidence in depth. It cannot be known exactly what happened to Ms Paakkonen, but the Court found the evidence consistent with a sequence of events in which the couple encountered Mr Tamihere at Wentworth, where Mr Höglin was killed and Ms Paakkonen was abducted and taken to Tararu Creek Road in the couple’s car.
Under the proviso to s 385(1) of the Crimes Act 1961, the Court was satisfied beyond reasonable doubt that Mr Tamihere murdered Mr Höglin and Ms Paakkonen in April 1989. Accordingly, the Court declined to exercise its jurisdiction under s 406(1)(a) to quash Mr Tamihere’s convictions.
On 5 December 1990, Mr Tamihere was convicted of the murders of Mr Höglin and Ms Paakkonen, tourists from Sweden who disappeared in bush country on the Coromandel Peninsula after last being seen in Thames on 7 April 1989.
The Crown’s theory at trial was that Mr Tamihere, who was living in the bush at the time, murdered the couple somewhere near Crosbies Clearing, north of Thames. Its case included the eyewitness evidence of two trampers, John Cassidy and Theodore Knauf. They identified Mr Tamihere as the man they encountered at Crosbies Clearing with a young, blonde, European-looking woman, a description which would fit Ms Paakkonen, at around 3 pm on 8 April 1989. Witnesses saw Mr Höglin and Ms Paakkonen’s car parked at the end of Tararu Creek Road, which is the nearest place by car to Crosbies Clearing, on 9 April. Mr Tamihere admitted stealing their car from there and dumping or selling their possessions. The Crown case was otherwise circumstantial.
In 2020, the Governor-General referred Mr Tamihere’s convictions to the Court of Appeal to decide whether a miscarriage of justice may have occurred. If it had, the Court would quash his convictions unless it found that the evidence proved his guilt beyond reasonable doubt.
Two events since the trial led to the reference. The first was that, more than two years after he disappeared, Mr Höglin’s skeletal remains were found in bush in Wentworth Valley, which is a considerable distance from Crosbies Clearing and the end of Tararu Creek Road. Ms Paakkonen’s remains have never been found. The second was that the Crown case included evidence from a prison informant, Robert Conchie Harris, that Mr Tamihere had disclosed that he had almost been “sprung” by “a couple” while he was in the bush with Ms Paakkonen. That account tended to corroborate the trampers’ identifications. Mr Harris was convicted in 2019 of perjury in connection with that evidence. Taken together, the reference said these two events may raise doubts about the accuracy of the trampers’ identifications.
The Court considered evidence which was new in the sense that the jury had not heard it. It comprised evidence tending to show that, contrary to his account to police, Mr Tamihere was in the Wentworth Valley area about the time the Swedish couple went missing.
The Court found that the admission of Mr Harris’s evidence at Mr Tamihere’s trial may have affected the jury’s verdicts and accordingly amounted to a miscarriage of justice. It also differed from the Court’s reasoning in Mr Tamihere’s 1992 conviction appeal, which was argued after Mr Höglin’s remains were found.
However, the error did not justify setting the convictions aside. The Court found under the proviso to s 385(1) of the Crimes Act that no substantial miscarriage of justice occurred. That is so because the other evidence proved beyond reasonable doubt that it was Mr Tamihere who murdered Mr Höglin and Ms Paakkonen.
The Court found that the trampers’ visual identifications were reliable but, having regard to unsatisfactory circumstances in which the identifications were first made, their visual identification evidence would not have proved Mr Tamihere’s identity beyond reasonable doubt if it was the only evidence identifying him as the man they encountered at Crosbies Clearing.
However, the identifications were strongly supported by other reliable evidence from a number of sources. The other evidence included the finding at Mr Tamihere’s home of distinctive items remarked on by the trampers, his use of the couple’s key to gain access to their car, the finding of Ms Paakkonen’s wallet and jacket between Tararu Creek Road and Crosbies Clearing, his treatment of the couple’s property at Tararu Creek Road, his admissions when confronted with evidence he could not explain away, and certain proven lies. The judgment examines this other evidence in depth. It cannot be known exactly what happened to Ms Paakkonen, but the Court found the evidence consistent with a sequence of events in which the couple encountered Mr Tamihere at Wentworth, where Mr Höglin was killed and Ms Paakkonen was abducted and taken to Tararu Creek Road in the couple’s car.
Media Release
- MR [2024] NZCA 300 (PDF, 130 KB)
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)