As New Zealand’s top court, the Supreme Court hears only matters of general importance or commercial significance or which involve significant Treaty of Waitangi issues, or require an appeal to prevent or reverse a substantial miscarriage of justice.
We outline some interesting and relevant upcoming commercial cases (in chronological order).
Seaton v Minister for Land Information1
The Court heard the appeal on 13 November 2012 but is yet to issue its judgment on whether the relocation of electricity towers (owned by Transpower and Orion), to enable the widening of State Highway 1, constitute a “Government work” as defined in the Public Works Act 1981 (PWA).
The question will decide whether the Minister for Land Information has the power compulsorily to acquire easements over land owned by Ms Seaton. The Court of Appeal’s interpretation of the relevant provisions of the PWA was that the relocation did fall within the definition of “Government work”.
The New Zealand Māori Council v the Attorney-General2
The Supreme Court will consider whether the High Court was correct to dismiss an application for judicial review of the Crown’s decisions to:
- bring into force the State-Owned Enterprises Amendment Act 2012 (which changes Mighty River Power Limited (MRP) from a State-Owned Enterprise to a Mixed Ownership Model Company)
- amend MRP’s constitution to allow 49% private ownership, and
- put forward for sale, and to sell, up to 49% of the shares in MRP.
The applications for judicial review were advanced on the basis that the Crown had not had regard to the principles of the Treaty of Waitangi.
The High Court held that the decisions were not reviewable and that, even if they had been, none of the grounds of review raised by the Māori Council was satisfied.
The Supreme Court heard the appeal directly from the High Court, which is unusual and reflects the urgency of the situation. The appeal was heard over two days on 31 January and 1 February – shortly after the grant of leave was made – and a judgment is anticipated soon.
Paki v The Attorney-General3
In June 2012, the Supreme Court determined that title to the riverbed adjoining the Pouakani lands was not vested in the Crown under the Coal-mines Act Amendment Act 1903, because that section of the Waikato River was not navigable (for the purposes of that Act).
In 2013, the Supreme Court will decide:
- whether the Crown has title in the riverbed on the basis that the Crown holds adjoining land, applying the principle of ad medium filum aquae (literally meaning “to the middle line of the water”). This principle means that, where a river borders a block of land, the landowner owns the riverbed to the middle of the river
- if so, whether the Crown was in breach of any legal obligation owed to those from whom title was acquired, and
- if the Crown was in breach, whether the applicants are able to enforce those legal obligations given the lapse of time.
The Court of Appeal in its 2009 decision indicated a preference for the development of a good faith duty between Crown and Māori, noting that it would be problematic and inappropriate to impose a fiduciary obligation upon the Crown.
The appeal to the Supreme Court will be heard on 19 and 20 February 2013.
West Coast Ent Incorporated v Buller Coal Limited, Solid Energy New Zealand Limited, Royal Forest and Bird Protection Society of New Zealand Incorporated4
The Supreme Court will decide whether the Resource Management (Energy and Climate Change) Amendment Act 2004 (the Amendment Act) removes the ability of consent authorities, when considering applications for resource consent under the Resource Management Act 1991, to have regard to the effect that the discharge of greenhouse gas emissions from the end use of coal has on climate change.
This case is also on appeal directly from the High Court, which held that the Amendment Act does remove the entitlement to consider broader carbon emission effects. This appeal will be heard on 12 and 13 March 2013.
Waterhouse v Contractors Bonding Limited5
The Supreme Court will decide whether, and to what extent, a litigation funding agreement must be disclosed to the other party or parties in a proceeding.
The Court of Appeal held that a redacted version of a litigation funding agreement must be provided to the other party, disclosing the following key details:
- the identity and location of the litigation funder
- the funder’s financial standing/viability
- the funder’s amenability to the New Zealand jurisdiction, and
- the terms on which the funding can be withdrawn, and the consequences of withdrawal.
This appeal will be heard on 19 March 2013.
Chapman Tripp will continue to follow these cases, and will publish commentary and analysis on them as the Supreme Court delivers its judgments.
Our thanks to Nupur Upadhyay for writing this Brief Counsel.
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