New Zealand Case Law: Decisions & Judgments

Topic

Exceptional circumstances test

Legal area

Court

15 Dec 2023

SHARMA v AUCKLAND COUNCIL [2023] NZHC 1755

Citation

[2023] NZHC 1755
Court

High Court

Applying Hill, the High Court held there was no error in the District Court judge's application of law: the inquiry is confined to the immediate circumstances of the attack, pre- and post-attack history and assurances about future management are irrelevant, and the cumulative matrix of factors and "play gone wrong" did not amount to the exceptional circumstances required by s57(3); the destruction order for Kaiser was therefore upheld.
27 Jan 2023

ROBERT TELFORD v AUCKLAND COUNCIL [2023] NZHC 31

Citation

[2023] NZHC 31
Court

High Court

A conviction of the dog's owner is a precondition to making a destruction order under s57(3) Dog Control Act 1996; however the court retains a residual discretion under s106(3)(c) Sentencing Act 2002 to order destruction after granting a discharge without conviction where the destruction order would have been mandatory on conviction, and on the facts the High Court declined to exercise that discretion and quashed the District Court destruction order.
3 Aug 2022

AUCKLAND COUNCIL v PAUL [2022] NZHC 1898

Citation

[2022] NZHC 1898
Court

High Court

The High Court allowed the appeal because the District Court misapplied s 57(3) by treating the premises as the dog's private space, improperly characterising the complainant's attempt to pat the dog as provocation, drawing speculative inferences about the dog's psychology and relying on post-incident behaviour; none rendered the circumstances 'exceptional' and therefore an order for destruction of Zeus was required under s 57(3).
31 Aug 2021

VAN DELDEN v WAITAKI DISTRICT COUNCIL [2021] NZHC 2264

Citation

[2021] NZHC 2264
Court

High Court

The High Court held that a conviction under s57(2) is not a prerequisite to a destruction order under s57(3); the court retained power to make the mandatory destruction order after the District Court's dismissal because the omission to make the order could be corrected under the statutory corrective power (s180 CPA) and functional finality did not oust jurisdiction where an order was legally required; natural justice was satisfied because the actual owner was able to give evidence and make submissions; on the facts the circumstances were not 'exceptional' and the destruction order was properl…
24 Jun 2020

NGATI TAMA CUSTODIAN TRUSTEE LIMITED v PHILLIPS [2020] NZCA 252

Citation

(2020) 25 PRNZ 465
Court

Court of Appeal

The Court of Appeal held that the conduct in this Court (notably adjournment due to counsel withdrawal and an attempted late affidavit filing) did not meet the high threshold of "exceptional circumstances" under s 45 of the Legal Services Act 2011; although the indemnity clause in the settlement deed is relevant it is not decisive; accordingly no costs were awarded in the Court of Appeal and the earlier CA costs order was recalled and set aside; High Court costs are to be determined by the High Court.
10 Feb 2020

ZHOU v AUCKLAND COUNCIL [2020] NZHC 123

Citation

[2020] NZHC 123
Court

High Court

The Court held that s 57(3) requires destruction absent exceptional circumstances and the appellant failed to adduce evidence that post-offence measures or other circumstances rendered destruction unwarranted; the guilty plea admitted the attack and the evidence presented was insufficient to rebut the statutory presumption for destruction, therefore the District Court's destruction order must be upheld.
3 Jul 2018

EASTHOPE v AUCKLAND COUNCIL [2018] NZCA 234

Citation

[2018] NZCA 234
Court

Court of Appeal

Leave for a second appeal was declined because the issues raised did not disclose a matter of general or public importance and would not affect the outcome on the facts; the s 57(3) requirements are cumulative (circumstances of the offence must be exceptional and the court must be satisfied destruction is not warranted), and on these facts the circumstances were not exceptional and there was no post‑offence evidence of measures to reduce future risk, so denial of leave was appropriate under s 253(3).
15 Aug 2017

BIDDLE v POOLEY [2017] NZHC 1941

Citation

[2017] NZHC 1941
Court

High Court

The court declined to order costs against the legally aided plaintiff because exceptional circumstances under s45 were not made out given the plaintiff's impecuniosity, caring responsibilities, and the potential injustice and adverse impact on family relationships; however under s45(5) the court specified that, had s45 not applied, the plaintiff would have been ordered to pay the costs incurred by Charlotte and Bruce Pooley as paid or payable by legal aid (recorded at $31,709.21) and such further sums as legal aid may pay for attendances arising from this costs judgment.
9 May 2017

MALCOLM EDWARD RABSON v JUDICIAL CONDUCT COMMISSIONER [2017] NZSC 66

Citation

[2017] NZSC 66
Court

Supreme Court

The recall application was dismissed because it was misconceived: the applicant's allegations of judicial conflict did not mandate recusal and he failed to address the established "exceptional circumstances" test necessary for leave to appeal directly to the Supreme Court; the Court may regulate filings and restrain repetitive applications.
14 Mar 2016

H v S [2016] NZHC 433

Citation

[2016] NZAR 405
Court

High Court

At the interlocutory pre‑trial stage the court found a compelling reason to displace the open justice presumption: the first defendant showed a real risk of irreparable and disproportionate damage to his specialised practice and family caused by publication of serious but as yet untested allegations of fiduciary breaches; accordingly the judgment was anonymised on an interim basis and the position will be reassessed later.