High Court Judgments of Public Interest

Sentencing on the charge of murder. 

Result: sentenced to life imprisonment with an MPI of 17 and a half years. Firearms Prohibition Order made under S 39A of the Arms Act 1987 and reparation ordered of $8,271 to the deceased's family members. 

Interlocutory application by plaintiff for a direction that proceeding be set down for an urgent fixture. Cross-application by defendant for an interim stay of the proceeding. Substantive proceeding relates to Crown’s obligations under 1997 Deed of Settlement and Ngāi Tahu Claims Settlement Act 1998. Plaintiff sought three limbs of declaratory relief relating to: breach of Settlement; breach of s 4 Conservation Act 1987; breach of legitimate expectation of plaintiff. Interim stay sought primarily on basis the principles of Parliamentary privilege and non-interference are engaged.

HELD: Relevant Bill constitutes proceedings in Parliament; protected by privilege and by the non-interference principle; abuse of process of the Court for the Court be asked to engage in consideration of the proposed legislation. Stay sought by the defendant granted. Plaintiff’s application for urgent fixture falls away.

Summary: Defendant sentenced after being found guilty of manslaughter. The defendant stabbed the victim after being punched by him in an altercation outside the defendant's house.

Held: Starting point of seven and a half years' imprisonment reflecting the use, in anger, of a lethal weapon resulting in the loss of the victim's life. End sentence of five years' imprisonment after reductions for offer to plead guilty to manslaughter, remorse, and impact of imprisonment on child.

Application for judicial review of a political party leadership's conduct on the basis it was unlawful under the party's constitution. The first applicant, a Te Pāti Maori electorate MP, claimed that members of her party's leadership had unlawfully suspended and then expelled her from Pāti membership. The applicants also claimed that the Pāti president had not been validly re-elected, making his presidential actions since the expiry of his first term invalid. The applicants sought relief including the reinstatement of the first applicant as a member of the Pāti. 

Held: Application granted in part. Declarations made that the first and/or second respondents' resolutions to suspend and then expel the first applicant from Pāti membership were unlawful under the party’s constitution. Order made setting aside those decisions, reinstating the first applicant as a Pāti member. Court found no invalidity in the process leading to third respondent’s re-election as Pāti president, so the cause of action failed.

Application for judicial review or declarations regarding the District Court decision voiding the 2025 election for the Papatoetoe Subdivision of the Otara-Papatoetoe Local Board. 

Held: Application dismissed. Section 103 of the Local Electoral Act precludes removal of a determination to the High Court by "any procedure". This has effect to preclude the High Court from reviewing matters connected to the factual inquiry undertaken by the District Court Judge. The applicants' application as it relates to the Judge's factual inferences and inquiry are barred. 

Other grounds of judicial review asserting errors in the standard of proof adopted, misconstruction of the jurisdiction and aspects of the allegations of breach of natural justice associated with notice of the petition and its grounds are not barred. However, these errors are not established. 

The applicants' conduct is not impugned at all by the District Court. No allegation that the applicants were involved in misuse of voting papers. Declarations are not required and would not be appropriate.

The High Court has made orders under the Criminal Proceeds (Recovery) Act 2009 in a case where home-owners found $232,400 cash concealed in the ceiling of their residence they had recently purchased. They handed the money to the Police. Evidence established the cash was probably “tainted” in the sense it was derived from drug dealing. Police sought a forfeiture order over all the cash. The home-owners sought an order entitling them to all the cash. The parties reached an agreement for approval by the Court under the Act. The Court has approved a settlement whereby the cash vests in the Crown but the Crown is to pay the homeowners $40,000.

Representative proceeding brought by the New Zealand College of Midwives Inc (College), on behalf of 1,473 LMC midwives, against 1the Attorney-General representing the Ministry of Health (Ministry) for breach of contract, breach of obligations to take all necessary steps and work together in good faith, equitable estoppel, quantum meruit, and unlawful discrimination on basis of gender under s 19 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Alleged commitment to pay LMC midwives fair and reasonable remuneration underpinned all claims.

Lead maternity care (LMC) midwives paid under capped, modular Notices issued by the Crown. Notices relevant to this proceeding issued under s 51 of the New Zealand Public Health and Disability Act 2000 in 2007 and 2021.

In 2017, College abandoned judicial review proceedings against the Ministry in return for promises under a series of six agreements made between 2016 and 2018. Ministry made a series of contractual promises under the final 2018 Settlement Agreement. College believed those promises were to be implemented by 1 July 2020.

First cause of action for breach of 2018 Settlement Agreement. Attorney-General denied existence of substantive obligations under the Agreement and raised series of constitutional issues, asserting Agreement could not bind the Crown.

Held, Agreement enforceable against the Crown. Official who signed Agreement on behalf of Ministry had actual, apparent and implied authority to do so; Agreement not subject to further approvals; Agreement did not impermissibly fetter Crown's future freedom to act.

Held, Agreement required Crown to implement a national midwifery contract by 1 July 2020, pay LMC midwives a fair and reasonable service price by July 2020, and provide ability for midwives to renegotiate fees paid to them on annual basis. Text of Agreement, context and subsequent conduct of Crown all supported this finding. Failure of the Crown to call certain key witnesses gave rise to an inference that their evidence would not have assisted the Crown's case: Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 (CA)).

Held, Crown failed to meet these obligations and breached the Agreement.

Second cause of action for breach of obligations under 2018 Settlement Agreement to take all necessary steps to fulfil its terms and to work together with College in good faith.

Held, obligations both express and implicit in Agreement.

Held, Ministry breached those obligations. Circumstances such as COVID-19 pandemic, Health and Disability System Review and political arrangements did not justify failures.

Third cause of action for equitable estoppel. Plaintiffs claimed Crown represented fair and reasonable price free from gender-based discrimination would be paid from 1 July 2020.

Held, equitable estoppel available against Crown (Commonwealth of Australia v Verwayen (1990) 170 CLR 394); representations clear and unequivocal; plaintiffs relied on representations; reliance reasonable until 1 July 2020.

Held, continued reliance not reasonable after 1 July 2020; individual midwives had not established detriment. Equitable estoppel claim not made out.

Fourth cause of action for quantum meruit based on "free acceptance" (Morning Star (St Lukes Garden Apartments) Ltd v Canam Construction Ltd CA90/05, 8 August 2006).

Held, expectation of payment of fair and reasonable service price was not for those services. No evidence of expectation that price would be paid retrospectively. Quantum meruit claim not made out.

Fifth cause of action was for unlawful discrimination on the basis of gender under s 19 of Bill of Rights. Two step analysis from Ministry of Health v Atkinson [2012] NZCA 184, as framed in J v Attorney-General [2023] NZCA 660, applied.

Held, LMC midwives discriminated against on basis of gender. Obstetricians and GPs suitable comparators. Differential treatment between LMC midwives and obstetricians/GPs. Differential treatment "on ground of' gender as cannot solely be explained by other factors, so gender remains "material ingredient" (McAlister v Air New Zealand Ltd [2009] NZSC 78 per Tipping J). Differential treatment imposes material disadvantage on LMC midwives, in form of financial detriment, lack of autonomy and lack of self-worth.

Held, limit on right to be free from discrimination not demonstrably justified under s 5 of Bill of Rights.

Held, a declaration not an adequate remedy for fifth cause of action (discrimination). Award of damages necessary as incentive to avoid repetition of the breach. $1,000 awarded to each LMC midwife to recognise injury to dignity as result of breach, and to vindicate right (Association of Ontario Midwives v Ontario (Health and Long-term Care) 2020 HRTO 165 considered).

Held, appropriate remedy for first and second (contractual) causes of action to attempt to restore plaintiffs to position if breaches of contract had not occurred. Where plaintiffs' loss not capable of precise calculation, Court entitled to make reasonable assumptions (Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111 (QB)). Having regard to the parties' Co-design work, two PwC reports and a benchmarking exercise and a discrete choice model exercise carried out by the plaintiffs' expert witnesses, the Court determined a fair and reasonable service price.

Held, fair and reasonable take home pay, as at 1 July 2020, for a notional LMC midwife working 1.0 FTE was $170,340. Figure to be adjusted for successive years based on Labour Cost Index. 

Held, LMC midwives must be paid the fair and reasonable service price, backdated from 1 July 2020.

Application under Declaratory Judgments Act 1908 and the common law for declarations that the Crown is bound by assurances made by Ministers to the High Court and Supreme Court in relation to the implementation of a mixed ownership model (MOM) for the state-owned enterprise Mighty River Power Ltd (The New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31).  Additionally, the applicants sought directions that the Crown prepare for consideration by the Court, a scheme of safeguards to give reasonable assurances that it would not prejudice Māori water rights in future water allocations.   The applicants claimed that assurances from the Crown were to the effect that it would progress Māori rights and interests in freshwater and geothermal assets generally, and that those assurances have been breached.  

HELD: the assurances did not have the meaning claimed.  They were limited to assurances that the MOM programme would not affect either the government’s progression of fresh water regulatory reform and the recognition of Māori rights and interests, or the Crown’s ability to continue to meet Treaty claims.  The application of tikanga and Treaty principles did not change the meaning of the assurances.  The directions sought would interfere with the ongoing development of policy and introduction of legislation and so breach the doctrine of non-interference with parliamentary process.  Neither estoppel nor contempt of court were made out and the requirements of the doctrine of legitimate expectation (although not pleaded) were not met.  An objection under Parliamentary Privilege Act 2014 in relation to parts of the affidavit evidence upheld.  The applications were dismissed.  

R v Boulter – sentencing

Defendant pleaded guilty to murder of woman he had brief relationship with – obsessive behaviour, threatening messages, waited outside her house with a hunting knife, 55 stab wounds to her body, limbs and head, victim's two children were present – history of obsessive behaviour towards women escalating in physical attacks – life imprisonment not manifestly unjust – 17 year notional MPI appropriate considering case law (including 18-month uplift for criminal history and 18-month deduction for guilty plea) – ss 86P and 104 Sentencing Act 2002 apply – not accepted that defendant's planning was lengthy or calculated – accepted that high level of brutality and callousness was present.

Defendant sentenced after being found guilty of two charges of rape; six charges of sexual violation by unlawful sexual connection; eight charges of indecent assault; assault with a weapon; and two charges of dealing in slaves. The defendant controlled the victims' finances, freedom of movement and communication, and used actual or threatened violence. The defendant began sexually offending against the female victim when she was in her teens, and raped her on two occasions.

Held: Starting point of 14 years' imprisonment for the sexual offending, uplifted by five years for the charges of slavery. The Court considered that the charges of slavery alone would have attracted a starting point of nine years' imprisonment. Discount of five percent for the impact of imprisonment on the defendant, having been a former corrections officer, and a discount of five per cent for the impact of imprisonment on the defendant's ailing wife. Another discount of nine months to reflect the time the defendant has spent on electronically monitored bail. No discount for previous good character. End sentence of 16 years and four months' imprisonment, with a minimum period of imprisonment of 50 per cent of the end sentence. Protection orders granted under s 123B of the Sentencing Act 2002.

The offender pleaded guilty to one charge of murder and three charges of wounding with intent to cause grievous bodily harm. The offending occurred after a period of tension with the victim group. This group arrived at the offender's home and after a heated exchange the offender fired four shots at that group. Two victims were struck in the face, two victims were struck in the chest. One chest wound was fatal. The offending was a disproportionate effort to defend a perceived attack. The offender was 19 when the offending occurred. The offender's difficult personal background had distorted his perception of threat and impaired his emotional regulation. Applying Dickey v R, the Court found it would be manifestly unjust to impose a sentence of life imprisonment. A starting point of 19 years imprisonment for murder was increased to 23 years for the other charges. Discounts applied were: 20 per cent for youth, 15 per cent for guilty plea, and 10 per cent for personal background. One year uplift for relevant prior convictions applied. Adopting the Dickey approach the Court held 16 years imprisonment was appropriate.

HELD: For murder, the offender was sentenced to 16 years imprisonment with a minimum period of imprisonment of eight years. On each of the remaining charges, the offender was sentenced to four years imprisonment. Those sentences were to be served concurrently.

Sentencing notes - Murder. Section 104 engaged on two bases: extensive planning of the murder and callousness both at the time of the murder and in the subsequent burying and active concealment of the body. An MPI of 19 years was appropriate for the killing. Having regard to the personal circumstances of the individual defendants, including in the case of Mr Snaylam, his age at the time (19) and in the case of Mr AI-Fadhli who was not present at the time of the killing but who was fully aware of what was to occur at his property (and whose role was fundamentally important). MPls of 17 years for Mr Snaylam, 18 years for Mr Kameta and 17 years for Mr AI-Fadhli were appropriate. In the circumstances it is not manifestly unjust to impose MPI’s sentences at those levels.

Application for leave to appeal on questions of law arising in District Court Judge alone trials resulting in convictions on charges under Trespass Act 1980. Convictions relate to protest occupation of pontoon in marine construction zone.

HELD:

1. The holder of a coastal permit issued under the Resource Management Act 1991 can lawfully exclude the entire public when reasonably necessary for the permit's purpose, including persons asserting entitlement to occupy the area as a matter of tikanga.

2. The District Court Judge's factual finding that ii was reasonably necessary to exclude the public from the pontoon within the construction zone not so clearly untenable as to amount to an error of law.

3. Any mistake by the appellants about whether they were entitled as a matter of tikanga to occupy the construction zone was a mistake in law rather than fact, incapable of giving rise to a defence of honest belief in facts or circumstances which would make their presence lawful.

RESULT: leave granted, proposed questions reframed under s 299 of the Criminal Procedure Act 2011 and answered. Convictions upheld.

Application for urgent injunction restraining publication or use of data stolen in a cyber-attack on Manage My Health Ltd’s online patient portal. Held: strong case made out that patient data had been exfiltrated unlawfully and for the purpose of ransom.  Overall interests of justice clearly favoured protection of confidential information belonging to patient and GP practices in the circumstances.

Urgent without notice application, for orders requiring deletion and non-use/dissemination of confidential member information downloaded from online platform and listed for sale on dark web. Information would assist identity fraud.

HELD: application granted in terms addressed broadly, to those with unauthorised access to such data. Applicant’s inability to identify defendants no impediment. Prima facie case of breach of confidence and balance of convenience favour orders being granted.