Court of Appeal Judgments of Public Interest
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Case number
[2025] NZCA 80
Date of Judgment
28 March 2025
Summary
Judicial review — Climate Change Commission — error of logic — statutory purpose — error in law — unreasonableness
Appeal dismissed. No order as to costs.
Lawyers for Climate Action NZ Inc (LCANZI) applied in the High Court for judicial review of advice given by He Pou a Rangi | the Climate Change Commission (the Commission) to the Minister of Climate Change (the Minister). The Commission provided advice for the purpose of setting the first three emissions budgets under the Climate Change Response Act 2002 (the Act) (Budgets Advice), and advice on whether New Zealand’s then current nationally determined contribution (NDC) was compatible with contributing to the global effort under the Paris Agreement to limit global average temperature increase to 1.5ºC above pre‑industrial levels (the 1.5ºC goal) (NDC Advice).
LCANZI said the NDC Advice was based on a logical or mathematical error, because the Commission compared the level of New Zealand’s international commitment (using gross-net accounting) with modelling carried out by the Intergovernmental Panel on Climate Change (IPCC) in a 2018 report (using net‑net accounting). In relation to the Budgets Advice, LCANZI said that the Commission had misinterpreted the statutory purpose as it did not consider whether the budgets were consistent with the 1.5ºC goal, and mischaracterised mandatory statutory considerations; the Commission had recommended the use of modified activity‑based (MAB) accounting to measure progress towards meeting emissions budgets and the target for emissions reduction by 2050 under the Act (the 2050 target), when the Act mandated land‑based accounting as used in New Zealand’s Greenhouse Gas Inventory; and the Budgets Advice was irrational and unreasonable.
The High Court dismissed the application. In relation to the NDC Advice, the Judge held the Commission did not make a logical or mathematical error because it had intended to use the IPCC modelling as an indirect comparator, and that approach — as well as the availability of other approaches — was understood by the Minister. In relation to the Budgets Advice, the Judge held that the Commission had not misinterpreted the statutory purpose as it correctly understood the need to have regard to mandatory relevant considerations, which it did not mischaracterise, with the 2050 target and the 1.5ºC goal in mind. The legislation empowered the Commission to give advice on the appropriate accounting methodology to measure progress and did not mandate land-based accounting. The Commission’s advice was not irrational and unreasonable: the reasoning and materials underlying the NDC advice and recommendation of MAB accounting supported its choices. The legislation did not require that the advice put New Zealand on track to reduce its domestic net emissions in line with the IPCC’s modelling. The Commission’s reasoning and the material on which it was based justified its advice, and no error in that reasoning or the material was shown.
LCANZI appeals to this Court on the basis that the Judge erred in her conclusions on each of those grounds. The Commission supports the judgment on other grounds, submitting the Commission’s advice is not amenable to judicial review, or in the alternative the scope for review is narrow; extensive evidence filed by LCANZI should have been excluded; and a more exacting standard of review than Wednesbury unreasonableness should not have been applied. The final ground is also supported by the Minister.
Issue one: was the Commission’s advice amenable to judicial review? Held: yes. A statutory power of decision is defined expansively under s 4 of the Judicial Review Procedure Act 2016 and should be given a liberal interpretation. The Commission has a critical role in achieving the purposes of the Act, and its central role in managing New Zealand’s response to climate change cannot be overemphasized. The Commission’s advice on the emissions budgets is not just one factor among many to be taken into account, and its central importance means it falls within the ambit of a statutory power of decision. The fact the Minister may depart from the advice does not immunise the advice from review.
Issue two: was LCANZI’s evidence admissible? Held: the admissibility issue will not affect the substantive outcome, but much of the evidence was not admissible. Some of the evidence was substantially helpful to gain an adequate and necessary understanding of complex technical issues. However, much of the evidence was not substantially helpful in determining the advice’s lawfulness, including because it provided information readily understandable to a layperson, evidence on general and uncontentious topics, and covered personal beliefs.
Issue three: was there a mathematical or logical error in the Commission’s advice? Held: no. The Commission deliberately chose to apply the net-net modelled reductions in the IPCC’s report to New Zealand’s 2010 gross CO2 emissions and explained why. The Minister understood this. There is no reason to suppose a more ambitious NDC would have been set if the modelled reductions had been applied to New Zealand’s 2010 net CO2 emissions and adjusted to reflect value judgments. The NDC Advice did not have an inappropriate anchoring effect.
Issue four: did the Commission fail to comply with a statutory requirement to meaningfully consider what is required to meet the 1.5ºC goal and recommend budgets that are consistent with it? Held: no. The emissions budgets are intended to serve the dual purpose of the Act — the 2050 target and contributing to the 1.5ºC goal — on a plain reading of s 5W and having regard to the legislative history. However, the purpose provision is not a substantive bottom line requirement as in Trans‑Tasman Resources v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801. It is not cast in absolute or clearly defined terms, and no framework or parameters are prescribed for assessing the adequacy of the envisaged contribution to the 1.5ºC goal. An increase in net emissions in a particular budget period does not mean the series of emissions budgets will not have been set with a view to contributing to the 1.5ºC goal due to the impact of the forestry sector. Contributing to the 1.5ºC goal was covered extensively in chs 4, 5 and 9 of the Commission’s advice.
Issue five: did the Commission make an error of law in using MAB accounting methodology? Held: no. The issue is whether the Commission’s obligation to advise the Minister on matters relevant to setting an emissions budget extends to the accounting methodologies to be employed. New Zealand has never set its targets or measured progress towards them on the basis of land-based accounting; activity-based accounting is consistent with the analysis informing the 2050 target; and land-based accounting is arguably ill‑suited to setting and monitoring performance because it can obscure achieved emissions reductions.
The 2050 target refers to “net accounting emissions” and the Minister is obliged to ensure that “net accounting emissions do not exceed the emissions budget for the relevant emissions budget period”. The term “net accounting emissions” is defined to include “as reported in New Zealand’s Greenhouse Gas Inventory”. The legislative history shows this expression was inserted to differentiate it from “net emissions” as used in New Zealand Greenhouse Gas Inventory reporting, and to clarify that offshore mitigation can be counted. Activity‑based accounting is used under the Kyoto Protocol and the Paris Agreement, and data relating to accounting under those international agreements is included in New Zealand’s Greenhouse Gas Inventory. The definition of “net accounting emissions” is therefore wide enough to capture emissions and removals accounted for under MAB accounting.
This interpretation serves the purposes of the Act and fits the immediate statutory context. If Parliament had mandated the use of land-based accounting, one would expect this to have been clearly stated. It is not surprising that the Commission, the independent expert body, was charged with providing this ongoing specialist advice. There is also support in the legislative history that the reference in the Act to “the rules that will apply to measure progress towards meeting emissions budgets and the 2050 target” was intended to encompass the applicable accounting methodology for land use, land-use change and forestry, as well as other accounting rules the Commission determined.
Issue six: was the Commission’s advice unreasonable? Held: no. The Court is not particularly attracted by the idea of a variable standard of review, but the standard of review does not need to be determined and should be left for a case where it matters. LCANZI’s claim is largely dependent on the other three grounds of review, and thus the overall unreasonableness claim mostly falls away. The budgets need to be understood alongside the distortions created by the forestry sector. The IPCC modelling in the 2018 report was not intended to be applied to individual countries, and the Act did not require recommending or setting budgets on that basis. It was not unreasonable or irrational to focus attention on new and enduring emissions reductions achievable in budgets periods through behavioural change driven by policy settings. This was consistent with the scheme and purposes of the Act. The claim that the Commission ought to have conducted further analyses or that choices should have been made differently go to the merits, not irrationality or unlawfulness.
Appeal dismissed. No order as to costs.
Lawyers for Climate Action NZ Inc (LCANZI) applied in the High Court for judicial review of advice given by He Pou a Rangi | the Climate Change Commission (the Commission) to the Minister of Climate Change (the Minister). The Commission provided advice for the purpose of setting the first three emissions budgets under the Climate Change Response Act 2002 (the Act) (Budgets Advice), and advice on whether New Zealand’s then current nationally determined contribution (NDC) was compatible with contributing to the global effort under the Paris Agreement to limit global average temperature increase to 1.5ºC above pre‑industrial levels (the 1.5ºC goal) (NDC Advice).
LCANZI said the NDC Advice was based on a logical or mathematical error, because the Commission compared the level of New Zealand’s international commitment (using gross-net accounting) with modelling carried out by the Intergovernmental Panel on Climate Change (IPCC) in a 2018 report (using net‑net accounting). In relation to the Budgets Advice, LCANZI said that the Commission had misinterpreted the statutory purpose as it did not consider whether the budgets were consistent with the 1.5ºC goal, and mischaracterised mandatory statutory considerations; the Commission had recommended the use of modified activity‑based (MAB) accounting to measure progress towards meeting emissions budgets and the target for emissions reduction by 2050 under the Act (the 2050 target), when the Act mandated land‑based accounting as used in New Zealand’s Greenhouse Gas Inventory; and the Budgets Advice was irrational and unreasonable.
The High Court dismissed the application. In relation to the NDC Advice, the Judge held the Commission did not make a logical or mathematical error because it had intended to use the IPCC modelling as an indirect comparator, and that approach — as well as the availability of other approaches — was understood by the Minister. In relation to the Budgets Advice, the Judge held that the Commission had not misinterpreted the statutory purpose as it correctly understood the need to have regard to mandatory relevant considerations, which it did not mischaracterise, with the 2050 target and the 1.5ºC goal in mind. The legislation empowered the Commission to give advice on the appropriate accounting methodology to measure progress and did not mandate land-based accounting. The Commission’s advice was not irrational and unreasonable: the reasoning and materials underlying the NDC advice and recommendation of MAB accounting supported its choices. The legislation did not require that the advice put New Zealand on track to reduce its domestic net emissions in line with the IPCC’s modelling. The Commission’s reasoning and the material on which it was based justified its advice, and no error in that reasoning or the material was shown.
LCANZI appeals to this Court on the basis that the Judge erred in her conclusions on each of those grounds. The Commission supports the judgment on other grounds, submitting the Commission’s advice is not amenable to judicial review, or in the alternative the scope for review is narrow; extensive evidence filed by LCANZI should have been excluded; and a more exacting standard of review than Wednesbury unreasonableness should not have been applied. The final ground is also supported by the Minister.
Issue one: was the Commission’s advice amenable to judicial review? Held: yes. A statutory power of decision is defined expansively under s 4 of the Judicial Review Procedure Act 2016 and should be given a liberal interpretation. The Commission has a critical role in achieving the purposes of the Act, and its central role in managing New Zealand’s response to climate change cannot be overemphasized. The Commission’s advice on the emissions budgets is not just one factor among many to be taken into account, and its central importance means it falls within the ambit of a statutory power of decision. The fact the Minister may depart from the advice does not immunise the advice from review.
Issue two: was LCANZI’s evidence admissible? Held: the admissibility issue will not affect the substantive outcome, but much of the evidence was not admissible. Some of the evidence was substantially helpful to gain an adequate and necessary understanding of complex technical issues. However, much of the evidence was not substantially helpful in determining the advice’s lawfulness, including because it provided information readily understandable to a layperson, evidence on general and uncontentious topics, and covered personal beliefs.
Issue three: was there a mathematical or logical error in the Commission’s advice? Held: no. The Commission deliberately chose to apply the net-net modelled reductions in the IPCC’s report to New Zealand’s 2010 gross CO2 emissions and explained why. The Minister understood this. There is no reason to suppose a more ambitious NDC would have been set if the modelled reductions had been applied to New Zealand’s 2010 net CO2 emissions and adjusted to reflect value judgments. The NDC Advice did not have an inappropriate anchoring effect.
Issue four: did the Commission fail to comply with a statutory requirement to meaningfully consider what is required to meet the 1.5ºC goal and recommend budgets that are consistent with it? Held: no. The emissions budgets are intended to serve the dual purpose of the Act — the 2050 target and contributing to the 1.5ºC goal — on a plain reading of s 5W and having regard to the legislative history. However, the purpose provision is not a substantive bottom line requirement as in Trans‑Tasman Resources v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801. It is not cast in absolute or clearly defined terms, and no framework or parameters are prescribed for assessing the adequacy of the envisaged contribution to the 1.5ºC goal. An increase in net emissions in a particular budget period does not mean the series of emissions budgets will not have been set with a view to contributing to the 1.5ºC goal due to the impact of the forestry sector. Contributing to the 1.5ºC goal was covered extensively in chs 4, 5 and 9 of the Commission’s advice.
Issue five: did the Commission make an error of law in using MAB accounting methodology? Held: no. The issue is whether the Commission’s obligation to advise the Minister on matters relevant to setting an emissions budget extends to the accounting methodologies to be employed. New Zealand has never set its targets or measured progress towards them on the basis of land-based accounting; activity-based accounting is consistent with the analysis informing the 2050 target; and land-based accounting is arguably ill‑suited to setting and monitoring performance because it can obscure achieved emissions reductions.
The 2050 target refers to “net accounting emissions” and the Minister is obliged to ensure that “net accounting emissions do not exceed the emissions budget for the relevant emissions budget period”. The term “net accounting emissions” is defined to include “as reported in New Zealand’s Greenhouse Gas Inventory”. The legislative history shows this expression was inserted to differentiate it from “net emissions” as used in New Zealand Greenhouse Gas Inventory reporting, and to clarify that offshore mitigation can be counted. Activity‑based accounting is used under the Kyoto Protocol and the Paris Agreement, and data relating to accounting under those international agreements is included in New Zealand’s Greenhouse Gas Inventory. The definition of “net accounting emissions” is therefore wide enough to capture emissions and removals accounted for under MAB accounting.
This interpretation serves the purposes of the Act and fits the immediate statutory context. If Parliament had mandated the use of land-based accounting, one would expect this to have been clearly stated. It is not surprising that the Commission, the independent expert body, was charged with providing this ongoing specialist advice. There is also support in the legislative history that the reference in the Act to “the rules that will apply to measure progress towards meeting emissions budgets and the 2050 target” was intended to encompass the applicable accounting methodology for land use, land-use change and forestry, as well as other accounting rules the Commission determined.
Issue six: was the Commission’s advice unreasonable? Held: no. The Court is not particularly attracted by the idea of a variable standard of review, but the standard of review does not need to be determined and should be left for a case where it matters. LCANZI’s claim is largely dependent on the other three grounds of review, and thus the overall unreasonableness claim mostly falls away. The budgets need to be understood alongside the distortions created by the forestry sector. The IPCC modelling in the 2018 report was not intended to be applied to individual countries, and the Act did not require recommending or setting budgets on that basis. It was not unreasonable or irrational to focus attention on new and enduring emissions reductions achievable in budgets periods through behavioural change driven by policy settings. This was consistent with the scheme and purposes of the Act. The claim that the Commission ought to have conducted further analyses or that choices should have been made differently go to the merits, not irrationality or unlawfulness.
Case name
Case number
[2025] NZCA 63
Date of Judgment
21 March 2025
Summary
The appeal is allowed in part. We answer the questions of law as follows:
(1) Was the High Court wrong to hold that “in the circumstances of this case, which involved work that was significant, complex and time consuming, the administration of the legal aid grant by the preparation of the application for an amended grant, correspondence with the Commissioner in respect of same and the work related to invoicing that goes beyond form filling may amount to the provision of a legal aid service”?
The High Court did not err in finding that the administration of Mr Fawcett’s legal aid grant by the preparation of amendment to grant applications and associated correspondence may amount to the provision of a legal aid service. The High Court did err, however, in finding that the time spent by Mr Fawcett’s legal aid provider in relation to invoicing may amount to the provision of a legal aid service.
(2) Was the High Court wrong to make a declaration?
No.We set aside the Commissioner’s decision and direct her to reconsider Mr Fawcett’s application for legal aid funding for the preparation of amendment to grant applications and associated correspondence, in light of this judgment. Leave is reserved to file memoranda on costs.
Legal Services Act 2011 – Question of law – Legal aid administration
Mauha Fawcett was charged with murder, and his defence was funded through a legal aid grant under the Criminal High Cost Cases regime. His legal aid provider applied for amendments to the legal aid grant, seeking additional funding for various aspects of his defence.
The High Court found that the significant, complex, and time-consuming work undertaken by Mr Fawcett’s legal team in preparing the amendment applications—and work related to invoicing beyond simple form-filling—could fall within the definition of “legal aid service” under the Legal Services Act 2011 and hence be eligible for legal aid funding. The Legal Services Commissioner now appeals.
Whether the preparation and submission of invoices is capable of falling within the definition of legal services? Held: No.
Preparing invoices is an administrative task that is tied to the operation and management of the lawyer’s practice. Such costs are generally absorbed by a firm or sole practitioner as part of the costs of running a practice. Completing an invoice is not a service that a lawyer provides to a client, it is work undertaken primarily for the benefit of the lawyer. Such work does not fall within the definition of legal services in the Act and is not eligible for legal aid funding.
Whether time spent by a provider in relation to amendment to grant applications is capable of falling within the definition of legal services? Held: Yes.
The work undertaken by a legal aid provider in preparing applications for amendments to a grant of legal aid, and associated correspondence, can fall within the definition of “legal services” in the Act. Here, Mr Fawcett’s legal aid provider presented detailed and comprehensive information to the Commissioner to justify funding for specific defence strategies. This work involved legal advocacy, requiring legal skill, knowledge, and the application of law—similar to advising a private client regarding appropriate defence strategies in order to justify the required expenditure. The interactions were an were an essential and unavoidable part of representing Mr Fawcett in the proceedings. The work is capable of falling within section 4(a)(iii) of the Act, which encompasses “assistance with taking steps that are incidental to proceedings.” Steps that are “incidental” to a proceeding must have some connection to it but may be secondary, indirect, or subordinate. Here, the relevant work had a close nexus to Mr Fawcett’s proceeding and was fundamental to ensuring his fair, equitable, and effective participation in the justice system. There is nothing in the scheme of the Act to suggest that legal aid providers in High Cost cases are expected to undertake extensive legal work in relation to amendment to grant applications for free, or that legally aided persons are expected to undertake such work themselves.
Whether the High Court erred in granting a declaration? Held: No.
While granting a declaration was unusual, it was not an error of law to make such a declaration. In any event, the issue of the appropriate relief has been superseded by this appeal.
(1) Was the High Court wrong to hold that “in the circumstances of this case, which involved work that was significant, complex and time consuming, the administration of the legal aid grant by the preparation of the application for an amended grant, correspondence with the Commissioner in respect of same and the work related to invoicing that goes beyond form filling may amount to the provision of a legal aid service”?
The High Court did not err in finding that the administration of Mr Fawcett’s legal aid grant by the preparation of amendment to grant applications and associated correspondence may amount to the provision of a legal aid service. The High Court did err, however, in finding that the time spent by Mr Fawcett’s legal aid provider in relation to invoicing may amount to the provision of a legal aid service.
(2) Was the High Court wrong to make a declaration?
No.We set aside the Commissioner’s decision and direct her to reconsider Mr Fawcett’s application for legal aid funding for the preparation of amendment to grant applications and associated correspondence, in light of this judgment. Leave is reserved to file memoranda on costs.
Legal Services Act 2011 – Question of law – Legal aid administration
Mauha Fawcett was charged with murder, and his defence was funded through a legal aid grant under the Criminal High Cost Cases regime. His legal aid provider applied for amendments to the legal aid grant, seeking additional funding for various aspects of his defence.
The High Court found that the significant, complex, and time-consuming work undertaken by Mr Fawcett’s legal team in preparing the amendment applications—and work related to invoicing beyond simple form-filling—could fall within the definition of “legal aid service” under the Legal Services Act 2011 and hence be eligible for legal aid funding. The Legal Services Commissioner now appeals.
Whether the preparation and submission of invoices is capable of falling within the definition of legal services? Held: No.
Preparing invoices is an administrative task that is tied to the operation and management of the lawyer’s practice. Such costs are generally absorbed by a firm or sole practitioner as part of the costs of running a practice. Completing an invoice is not a service that a lawyer provides to a client, it is work undertaken primarily for the benefit of the lawyer. Such work does not fall within the definition of legal services in the Act and is not eligible for legal aid funding.
Whether time spent by a provider in relation to amendment to grant applications is capable of falling within the definition of legal services? Held: Yes.
The work undertaken by a legal aid provider in preparing applications for amendments to a grant of legal aid, and associated correspondence, can fall within the definition of “legal services” in the Act. Here, Mr Fawcett’s legal aid provider presented detailed and comprehensive information to the Commissioner to justify funding for specific defence strategies. This work involved legal advocacy, requiring legal skill, knowledge, and the application of law—similar to advising a private client regarding appropriate defence strategies in order to justify the required expenditure. The interactions were an were an essential and unavoidable part of representing Mr Fawcett in the proceedings. The work is capable of falling within section 4(a)(iii) of the Act, which encompasses “assistance with taking steps that are incidental to proceedings.” Steps that are “incidental” to a proceeding must have some connection to it but may be secondary, indirect, or subordinate. Here, the relevant work had a close nexus to Mr Fawcett’s proceeding and was fundamental to ensuring his fair, equitable, and effective participation in the justice system. There is nothing in the scheme of the Act to suggest that legal aid providers in High Cost cases are expected to undertake extensive legal work in relation to amendment to grant applications for free, or that legally aided persons are expected to undertake such work themselves.
Whether the High Court erred in granting a declaration? Held: No.
While granting a declaration was unusual, it was not an error of law to make such a declaration. In any event, the issue of the appropriate relief has been superseded by this appeal.
Case name
Case number
[2025] NZCA 31
Date of Judgment
26 February 2025
Summary
PROPERTY LAW TORT LAW — Easement — claim in nuisance of unlawful interference with right of way
The appellant, Wimax New Zealand Limited (Wimax), and the respondents, the trustees of a family trust called the Aberdeen Four Trust (the trustees), are neighbours who share a common accessway governed by a registered vehicular right of way easement. Their dispute concerns structures erected by Wimax that encroach on land subject to the easement but which do not obstruct the formed driveway or impede movement along it. The trustees sought an order requiring Wimax to remove the structures. The trustees’ claim was brough in nuisance for unlawful interference.
The terms of the easement included various rights and covenants derived from sch 4 of the Land Transfer Regulations 2002 (the 2002 LT Schedule) and sch 5 of the Property Law Act 2007 (the PLA Schedule).
The parties arbitrated the dispute and the trustees’ claims were dismissed because, amongst other things, the structures did not impede the functionality of the driveway. The trustees appealed to the High Court. In the High Court, Moore J held that the arbitrator had erred by limiting the rights under the easement to the driveway. In the Judge’s view, correctly interpreted the terms of the easement required the whole of the easement area, of which the driveway was only a part, to be cleared of structures which substantially interfered with its use. The Judge also considered that in light of the permanent and substantial nature of the encroaching structures, the conclusion that they constituted a substantial interference with the trustees’ use and enjoyment of the right of way was inescapable. However, having allowed the trustees’ appeal against the arbitration award, the Judge remitted the matter back to the arbitrator to deal with the issue of remedy.
Wimax was granted leave to appeal Moore J’s decision on two questions of law related to liability, and the trustees were granted leave to appeal the decision to remit remedy issues to the arbitrator.
At the appeal hearing, the arguments of both parties in relation to liability evolved from what they had been at arbitration and in the High Court. On appeal the primary focus was on the claim that the structures constituted a substantial interference with the trustees’ rights under the easement because of possible future plans to sub-divide their property which would likely require a widening of the driveway.
As a result of the change in focus, the Court re-framed the question of law for determination as follows.
Did the High Court err in holding there was an actionable interference with a vehicular right of way easement in circumstances where the encroaching structures did not substantially interfere with the grantee’s current use of the right of way and what was relied on was the effect the structures might have on possible future plans to develop the benefited property? Held: Yes.
After considering established common law principles, the New Zealand case law relied upon by the High Court and the trustees as well as the statutory terms, the Court held the trustees had a right to potentially expand or develop the driveway within the easement area but rejected the implication of the High Court judgment that the whole of the right of way must be kept clear in case of a possible development at some unknown time.
In coming to that conclusion, the Court relied on two established principles. First that a grantee of a right of way easement cannot insist on the entirety of the burdened land being kept free of all structures, and that an intruding structure will only be actionable if it creates a substantial interference with the grantee’s use and enjoyment of the right of way. Because an easement does not grant ownership of land, but only a right to the reasonable use of that land for its granted purpose, the benefited owner can only sustain a claim predicated on substantial interference with reasonable use for that specific purpose. The second principle was the recognition of a temporal dimension to liability, namely that a grantee is only entitled to object to activities that substantially interfere with the use or exercise of the right as for the time being.
Was the High Court wrong to remit the question of remedy back to the arbitrator? Held: No
Because the liability appeal succeeded, the remedy appeal had to be dismissed. But the Court indicated that even if the liability appeal had failed, it would have still dismissed the remedy appeal. The factual issues were unsuited for an appellate court to resolve, especially when further evidence was likely to be required.
Wimax’s appeal was allowed, the trustees’ appeal was dismissed, and the arbitral award was reinstated.
The trustees were ordered to pay costs in respect of both appeals, with costs in the High Court to be fixed by the High Court, in light of this judgment.
The appellant, Wimax New Zealand Limited (Wimax), and the respondents, the trustees of a family trust called the Aberdeen Four Trust (the trustees), are neighbours who share a common accessway governed by a registered vehicular right of way easement. Their dispute concerns structures erected by Wimax that encroach on land subject to the easement but which do not obstruct the formed driveway or impede movement along it. The trustees sought an order requiring Wimax to remove the structures. The trustees’ claim was brough in nuisance for unlawful interference.
The terms of the easement included various rights and covenants derived from sch 4 of the Land Transfer Regulations 2002 (the 2002 LT Schedule) and sch 5 of the Property Law Act 2007 (the PLA Schedule).
The parties arbitrated the dispute and the trustees’ claims were dismissed because, amongst other things, the structures did not impede the functionality of the driveway. The trustees appealed to the High Court. In the High Court, Moore J held that the arbitrator had erred by limiting the rights under the easement to the driveway. In the Judge’s view, correctly interpreted the terms of the easement required the whole of the easement area, of which the driveway was only a part, to be cleared of structures which substantially interfered with its use. The Judge also considered that in light of the permanent and substantial nature of the encroaching structures, the conclusion that they constituted a substantial interference with the trustees’ use and enjoyment of the right of way was inescapable. However, having allowed the trustees’ appeal against the arbitration award, the Judge remitted the matter back to the arbitrator to deal with the issue of remedy.
Wimax was granted leave to appeal Moore J’s decision on two questions of law related to liability, and the trustees were granted leave to appeal the decision to remit remedy issues to the arbitrator.
At the appeal hearing, the arguments of both parties in relation to liability evolved from what they had been at arbitration and in the High Court. On appeal the primary focus was on the claim that the structures constituted a substantial interference with the trustees’ rights under the easement because of possible future plans to sub-divide their property which would likely require a widening of the driveway.
As a result of the change in focus, the Court re-framed the question of law for determination as follows.
Did the High Court err in holding there was an actionable interference with a vehicular right of way easement in circumstances where the encroaching structures did not substantially interfere with the grantee’s current use of the right of way and what was relied on was the effect the structures might have on possible future plans to develop the benefited property? Held: Yes.
After considering established common law principles, the New Zealand case law relied upon by the High Court and the trustees as well as the statutory terms, the Court held the trustees had a right to potentially expand or develop the driveway within the easement area but rejected the implication of the High Court judgment that the whole of the right of way must be kept clear in case of a possible development at some unknown time.
In coming to that conclusion, the Court relied on two established principles. First that a grantee of a right of way easement cannot insist on the entirety of the burdened land being kept free of all structures, and that an intruding structure will only be actionable if it creates a substantial interference with the grantee’s use and enjoyment of the right of way. Because an easement does not grant ownership of land, but only a right to the reasonable use of that land for its granted purpose, the benefited owner can only sustain a claim predicated on substantial interference with reasonable use for that specific purpose. The second principle was the recognition of a temporal dimension to liability, namely that a grantee is only entitled to object to activities that substantially interfere with the use or exercise of the right as for the time being.
Was the High Court wrong to remit the question of remedy back to the arbitrator? Held: No
Because the liability appeal succeeded, the remedy appeal had to be dismissed. But the Court indicated that even if the liability appeal had failed, it would have still dismissed the remedy appeal. The factual issues were unsuited for an appellate court to resolve, especially when further evidence was likely to be required.
Wimax’s appeal was allowed, the trustees’ appeal was dismissed, and the arbitral award was reinstated.
The trustees were ordered to pay costs in respect of both appeals, with costs in the High Court to be fixed by the High Court, in light of this judgment.
Case name
Case number
[2025] NZCA 15
Date of Judgment
19 February 2025
Summary
Sentencing – Child Sex Offender Register – mitigating factors in sentencing – manifestly excessive – uplift for previous conviction
Background: Following a guilty plea, the appellant was convicted in the District Court of exposing a young person to indecent material under s 124A of the Crimes Act 1961 and sentenced to eight months’ imprisonment. The effect of being convicted of that offence and receiving a custodial sentence was that he was automatically placed on the Child Sex Offender Register. He unsuccessfully appealed his sentence to the High Court but was granted leave to bring a second appeal to this Court on the grounds that the lower courts should have made an allowance at sentencing for the punitive effect of being placed on the Register.
In granting leave, this Court noted that while there was a consensus in the authorities that registration is punitive, the sentencing response to that fact was not yet settled, making this a suitable case for a second appeal.
Result: The appeal against sentence is dismissed.
Issue 1: Can registration on the Child Sex Offender Register be a mitigating factor to be taken into account at sentencing when determining the length of a sentence and type of sentence?
Held: Yes but only in exceptional circumstances.
Having regard to general sentencing principles, the provisions of the Sentencing Act 2002 (in particular
s 8(2)(h)), and the purpose and text of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, the Court reached the following conclusions:
(a) Because sentencing is quintessentially a discretionary exercise, clearer words would be required in the legislation before Parliament can be assumed to have intended to remove completely any discretion to take the impact of registration into account at sentencing.
(b) However, having regard to the important purpose of the legislation to reduce sexual offending against children, any judicial discretion to take registration into account must be considered a limited one.
(c) It would be contrary to Parliament’s intention were registration to result in reduced sentences for child sex offenders in anything other than exceptional cases. That approach (requiring exceptional circumstances) applies to both the issue of length of sentence where registration should not generally be regarded as warranting a discrete discount and also to the type of sentence.
(d) Exceptional circumstances justifying an allowance for the effect of registration will exist if registration is exceptional in its effects on the particular offender and will render an otherwise appropriate sentence unusually or disproportionately severe.
(e) The operation of the registration regime will therefore seldom result in a sentence otherwise within range being manifestly excessive.
(f) It would be inconsistent with the legislative purpose and hence wrong for a sentencing court to reduce a prison sentence on account of registration so as to bring it within the range of home detention. That would be to subvert the distinction drawn in the legislation for the purposes of registration between child sex offending that warrants a prison sentence and offending that does not.
(g) Where the length of a prison sentence arrived at without regard to the impact of registration is under the home detention threshold, then in deciding between prison and home detention, the availability of a registration order may be taken into account in determining whether home detention will sufficiently meet the need for community protection. Home detention should not however be imposed for the purpose of avoiding registration.
Issue 2: Did the appellant’s case meet the exceptional circumstances threshold?
Held: No. There was nothing exceptional in the circumstances of this case to warrant any allowance being made for the impact of registration in relation to the period of imprisonment or the substitution of a non-custodial sentence.
Background: Following a guilty plea, the appellant was convicted in the District Court of exposing a young person to indecent material under s 124A of the Crimes Act 1961 and sentenced to eight months’ imprisonment. The effect of being convicted of that offence and receiving a custodial sentence was that he was automatically placed on the Child Sex Offender Register. He unsuccessfully appealed his sentence to the High Court but was granted leave to bring a second appeal to this Court on the grounds that the lower courts should have made an allowance at sentencing for the punitive effect of being placed on the Register.
In granting leave, this Court noted that while there was a consensus in the authorities that registration is punitive, the sentencing response to that fact was not yet settled, making this a suitable case for a second appeal.
Result: The appeal against sentence is dismissed.
Issue 1: Can registration on the Child Sex Offender Register be a mitigating factor to be taken into account at sentencing when determining the length of a sentence and type of sentence?
Held: Yes but only in exceptional circumstances.
Having regard to general sentencing principles, the provisions of the Sentencing Act 2002 (in particular
s 8(2)(h)), and the purpose and text of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016, the Court reached the following conclusions:
(a) Because sentencing is quintessentially a discretionary exercise, clearer words would be required in the legislation before Parliament can be assumed to have intended to remove completely any discretion to take the impact of registration into account at sentencing.
(b) However, having regard to the important purpose of the legislation to reduce sexual offending against children, any judicial discretion to take registration into account must be considered a limited one.
(c) It would be contrary to Parliament’s intention were registration to result in reduced sentences for child sex offenders in anything other than exceptional cases. That approach (requiring exceptional circumstances) applies to both the issue of length of sentence where registration should not generally be regarded as warranting a discrete discount and also to the type of sentence.
(d) Exceptional circumstances justifying an allowance for the effect of registration will exist if registration is exceptional in its effects on the particular offender and will render an otherwise appropriate sentence unusually or disproportionately severe.
(e) The operation of the registration regime will therefore seldom result in a sentence otherwise within range being manifestly excessive.
(f) It would be inconsistent with the legislative purpose and hence wrong for a sentencing court to reduce a prison sentence on account of registration so as to bring it within the range of home detention. That would be to subvert the distinction drawn in the legislation for the purposes of registration between child sex offending that warrants a prison sentence and offending that does not.
(g) Where the length of a prison sentence arrived at without regard to the impact of registration is under the home detention threshold, then in deciding between prison and home detention, the availability of a registration order may be taken into account in determining whether home detention will sufficiently meet the need for community protection. Home detention should not however be imposed for the purpose of avoiding registration.
Issue 2: Did the appellant’s case meet the exceptional circumstances threshold?
Held: No. There was nothing exceptional in the circumstances of this case to warrant any allowance being made for the impact of registration in relation to the period of imprisonment or the substitution of a non-custodial sentence.
Case number
[2025] NZCA 1
Date of Judgment
04 February 2025
Summary
Employment law - Rest and meal break entitlements - Work period.
The appeal is dismissed.
The question of law is answered as follows: Did the Employment Court err in its interpretation of s 69ZC of the Employment Relations Act 2000? No.
Many public bus drivers employed by Tranzurban Hutt Valley Ltd are rostered to work for a period in the morning and a period in the afternoon, with a time in the middle of the day where they are not rostered to work. This arrangement is commonly known as a "split shift" and reflects the demand pattern for public buses.
Issue: Whether a split shift involves two discrete work periods or one work period for the purposes of the worker's entitlements to rest and meal breaks under the Employment Relations Act 2000 (the Act).
Held: There is nothing in the words of s 69ZC of the Act to preclude more than one work period in a day. The start and end of a work period are determined with reference to the employee's terms and conditions of employment. The rest and meal break entitlements under s 69ZD contemplate entitlements based on a continuous period of work during which the employee is working or on a rest or meal break or other authorised break. Whether a split shift involves a continuous work period or two separate work periods depends on a factual assessment. Tranzurban's approach to split shifts, which treats split shifts with a middle period of two or more hours as separate work periods, is consistent with the purposes of the rest and meal break provisions and the terms of the collective agreement.
The appeal is dismissed.
The question of law is answered as follows: Did the Employment Court err in its interpretation of s 69ZC of the Employment Relations Act 2000? No.
Many public bus drivers employed by Tranzurban Hutt Valley Ltd are rostered to work for a period in the morning and a period in the afternoon, with a time in the middle of the day where they are not rostered to work. This arrangement is commonly known as a "split shift" and reflects the demand pattern for public buses.
Issue: Whether a split shift involves two discrete work periods or one work period for the purposes of the worker's entitlements to rest and meal breaks under the Employment Relations Act 2000 (the Act).
Held: There is nothing in the words of s 69ZC of the Act to preclude more than one work period in a day. The start and end of a work period are determined with reference to the employee's terms and conditions of employment. The rest and meal break entitlements under s 69ZD contemplate entitlements based on a continuous period of work during which the employee is working or on a rest or meal break or other authorised break. Whether a split shift involves a continuous work period or two separate work periods depends on a factual assessment. Tranzurban's approach to split shifts, which treats split shifts with a middle period of two or more hours as separate work periods, is consistent with the purposes of the rest and meal break provisions and the terms of the collective agreement.