Maybe there’s something in the water. The Supreme Court issues one decision informed by classic strike-out principles and 19th century English case law about public nuisance and everyone decides it’s gone woke. Add to that a 20 Year Anniversary conference that participants confused with the Grand National for hobbyhorses and the Supreme Court must be wondering whether it has the inherent jurisdiction to order a national lie down.

The uniting theme in the public commentary flowing from those two events is that the Supreme Court is doing values not law. That was argued in decreasing levels of persuasiveness by Jack Hodder KC, Peter Watts KC, Professor Jim Allan, Roger Partridge, anyone else who commented in this way, and  Gary Judd KC. The concern seems to be that the Court is introducing values into the law, whether through Treaty principles or tikanga or some other means.  The criticisms of that are threefold: (1) values aren’t law; and (2) it’s undemocratic for the Court to do this; and (3) tikanga as a set of values is unknowable or unpredictable, which is bad for the law. 

On the first, law is informed by values all the time. Equity is one seething mire of Anglo values that makes the Chancery Bar rich.  What is the contra proferentem rule but a value, knowable in advance, and applicable to a set of facts? Or audi alteram partem, or noscitur a sociis? All of these reflect values, articulated and worked out over time until they become knowable law. We just fail to recognise them as such because they’re already embedded. It’s like finding out your dad was really into punk in the 1980s – you don’t think of him that way because as long as you’ve known him he’s gone easy on the eyeliner and bought his shirts from Farmers. 

Of course, changing values mean the law changes too. Think Tavita bringing international law to domestic interpretation). Or unjust enrichment: a Massive Concept that has found its way into the common law in the last 50 years (though with DNA of much older provenance). Here is a thing with a long-standing debate over its theoretical grounding, complaints that it is too wishy-washy, capable of application just to get the results you want, and most lawyers don’t understand it.

And yet the response to unjust enrichment has been careful academic spadework, ambitious claims by plaintiffs, cautious application by the courts, counsel figuring it out, steps forward and steps backward. What would be so bad about tikanga informing Lex Aotearoa walking a similar path? The academy has been hard at work, the ambitious claims are there, and now we’re at the cautious application by the courts stage.

The second objection about all this is that it is undemocratic. But as with anything, Parliament can always legislate it if it wants. And courts should listen (that’s why Fitzgerald is bad). But short of that, courts do make law – they always have.  And every time someone quotes the need for the Supreme Court to abide by the rule of law you can ask them to read s 3(1)(a)(ii) of the Supreme Court Act 2003. Parliament intended in creating the Supreme Court “to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions”. “Conditions, history, and traditions” sure sounds a lot like values to me. The Supreme Court doing what Parliament wanted is the rule of law in action. 

And the third objection is the supposedly unknowable nature of the values. The rule of law requires the law be knowable in advance. But this is just a skill issue, isn’t it? We accept multifactorial legal tests, we accept that what natural justice requires depends on the context, we accept the very broadest of statements like that correct sentences take into account all features of the offending and the offender. Lawyers can remain upright because they have their sea legs when it comes to these matters. But new currents aren’t a reason to go home. And if new values make a few KCs temporarily seasick, well, they’ll get there.

If the law is on the move then our job as lawyers is to get good. Just like we did with natural justice or unjust enrichment. If that requires more from us – as lawyers and as citizens – then that’s what we need to do. And maybe that’s going to be a challenge for people like those who have commented. Hell, it’s going to be a challenge for me – a Pākehā New Zealander, schooled in a generation that gave me a fair pronunciation of Te Reo Māori and a good-but-basic understanding of New Zealand history, but who’s lazy, and happy to say the right things as long as that means I don’t need to do anything that makes me uncomfortable. Well, tough. The challenge for us is to get better. And if we don’t have the energy and skills to do it, then there are generations of smarter lawyers coming after us who do.

The idea that the law might be changing is the only constant the law has. To stop and criticise the law’s latest developments after 1000 odd years  is to say that right now the law is as good as it is going to get. I refuse to accept that’s true.

When somebody wants to write some criticism that isn’t implicitly saying “I don’t understand the new law and I’m not willing to do the work to learn it”, I’d be happy to read it. In the meantime, I’ll be getting on with being a lawyer.

The programme for the Supreme Court 20th Anniversary Conference is stacked with talent.  Jack Hodder giving an advocate’s view,  Peter Watts getting some stuff off his chest, and Dean Knight telling us what the colour of carpet tiles in the Court’s foyer tells us about the adjudicative function. The clerk’s view is going to be given by Imogen Hensman, who once interned in my team at work – an idyllic four months where I would copy-and-paste her stellar work. Andrew Geddis and Marcelo Rodriguez Ferrere’s presentation is called “Adjudicative Minimalism” which I’m pretty sure is code for “You lot steadfastly refuse to say anything about intensity of review”. And a keynote by Justice Forrest “The Supreme Court Must Do Better” Miller, recently appointed to the Supreme Court.

Of course, no one asked for a gadfly’s view. If they had, I’m sure we could come up with all sorts. How for years the Supreme Court Rules required an incomplete Te Reo Māori translation on the intituling. That time a matter got all the way to the Supreme Court before everyone realised there was a whole other statutory scheme governing the issue. The Court declining to grant leave, then recalling its decline of leave, granting leave, and ultimately allowing the appeal. The time we found out what Blanchard, Tipping, McGrath, Wilson and Gault JJ all each thought about the admissiblity of pre-contractual negotiations. A sailing trip that the Court made counsel’s fault instead of the judge’s fault – the closest New Zealand has ever come to that time a man apologised for being shot in the face by Dick Cheney. Racehorses and, worse, Fitzgerald.

Yes, it’s true I don’t have anything intelligent to say about the Supreme Court turning 20. But there is something bubbling away at the level of sub-thought that I think the great-and-the-good in their 50s, 60s and 70s probably ‘know’, but don’t feel.

I studied law from 2009 to 2012 (well, 2013, but only because I miscounted my papers). I was in the early ranks of an ever-growing cohort where the Supreme Court has been a given.

Dissatisfaction with the structure of courts in this country runs deep. Legislation establishing New Zealand’s first western court system was enacted in June 1841 with the creation of the Courts of Session, followed by Courts of Request in July. By December that same year they were gone – replaced with County Courts, and a Supreme Court. And by July 1842, Henry Chapman (latterly a Supreme Court Judge) was writing to the Secretary of State of the Colonies urging reforms to the court system. But like my mum always said, it’s never going to get better if you keep picking at it.

It was probably that same national feeling that informed the debate about doing away with appeals to the Privy Council at the turn of the millennium. That was an idea that was hardly new: Robert Stout wrote in 1904 that “The English, it is said, are not, like the French, a logical people. The existence of the final Colonial Court of Appeal sitting in London, with Judges not appointed by the Colonies, is proof of the statement”. There is something about the more absurd elements of the English high judicial theatre that probably doesn’t suit the New Zealand soul. Sir Kenneth Gresson sat on the Privy Council in the 1960s. Glyn Strange’s Brief Encounters records that “In London, when the Law Lords were going to their usual sumptuous lunch they courteously invited Sir Kenneth, who replied tersely that he had his sandwiches and was going to eat them in his chambers as he always did.”

The debate around the establishment of the Supreme Court is covered well elsewhere (particularly in Margaret Wilson’s writing), but the spirit of the debate is probably best captured by a typically philosophical Sian Elias, who said told the Legal Research Foundation in 2001 that “In the frenzy over a Supreme Court to replace the Privy Council, it is important that we do not get the rapture of the heights”.

Twenty years of the Supreme Court and no one will now seriously suggest we do away with it. My small point isn’t that the Supreme Court is good at its job, or that it is “working” or that it is better than the Privy Council. The point I am reaching for is that the mark of the Court’s success is that my reaction to the fact we have a New Zealand-based apex court is simply “well of course we do”. And I think that is the reaction of my peers.

Twenty years of its work has not just proven that New Zealand can have a successful apex court; it’s proven that that shouldn’t have ever been in doubt.

How could the Privy Council do what the Supreme Court has achieved in the last 20 years? How could London be home to Lex Aotearoa? A Fitzgerald-style dialogue with Parliament can hardly conducted through tin cans and string from Westminster. And what would tall poppy syndrome have had to say about Jonathan Sumption at his most prattish?

Whatever foibles the Court had or has, they can be forgiven. A few years of playing with separate judgments has mostly been left behind as the Court matured. We improved on our line up of “old white guys” faster than the United Kingdom Supreme Court did. Judgment delivery time, well, we’ll get there.

And since the advent of the Supreme Court we get these occasional reminders of what the Privy Council offered us. Lundy in 2013. Here were the benefits of the famed wise men on far-flung shores. Counsel said no thank you to our Supreme Court and schlepped halfway across the globe to London, only to find Dame Sian Elias smiling beatifically down from the bench. That’s farce! If there was ever a case for New Zealand courts surely it was the one about meat pies and Palmerston North.

I’ll hide at the back of the conference sessions and probably not talk to anyone, but I’ll enjoy whatever scholarly analysis a lot of smart people have to share. I’ll also enjoy the deeper foundation to 20 year celebrations: the fact that after 20 years the Supreme Court does not need to justify its existence. We have a Supreme Court of New Zealand. And the alternative is absurd. It’s what a generation of lawyers know. More than anything else, that must be the mark of its success. But then, maybe that’s the rapture of the heights talking.

Newsroom reports that the courts will be included in the request to find 6.5% in costs savings. But what will those cuts look like in practice?

1. Senior court judiciary to spell judges names with lower case j to save on printing fees.
2. Leaks from ceiling at Auckland and Tauranga courthouses to be repurposed as water features.
3. Supreme Court to be replaced with Privy Council. Court of Appeal to be replaced with Court of Appeal of England and Wales.
4. Recruit new judges aged 65 or older to take advantage of Super Gold card discounts when on circuit.
5. Reduce hot water usage by asking Judge Callinicos to retire.
6. The insurance for the Supreme Court’s Toyota Previa to be changed to third-party only.
7. Judicial salaries to be paid in Zimbabwean dollars.
8. Chief Justice’s ex officio role as Administrator of Government to now include part-time admin for government.
9. Redirect 0800 COURTS to the Arbitrators and Mediators Institute of New Zealand.
10. Man on Clapham Omnibus to walk to work.

It’s been a rough year.

It all started so well. January, February, March? Simple, innocent times where all we had to worry about was coming up with jokes about how five white male law firm partners turned up to a student event. A group of five white male lawyers is actually called a management board. They said it was pizza but it turned out to be Five Guys. The closest this came to having a woman was one of the pizzas was called Margherita. Etc etc.

But October, November? Suddenly everyone is saying “Attorney-General Winston Peters” like that’s a thing that could happen. What on earth happened?

It couldn’t have come at a worse time. We’re all too tired right now to be doing culture wars in the appointment of judges, but the paroxysm of coalition negotiations briefly forced it onto our list of things to care about. As if the solution to all our problems was ensuring we don’t appoint any more of these woke judges from Parnell, Herne Bay and Thorndon, instead of prosaic-but-difficult things like increasing legal aid funding, more court staff, and getting the Environment Court to stop using Cambria. Over the three or so days where that seemed possible we had the parties briefing the media to generate articles that included breathless lines like this:

We have that! It’s called an appeal!

A entire year of this criticism of judges discourse is so punishing because the commentariat imagines all judges are Chloe Swarbricks of the bench when in fact all judges are Gerry Brownlees. Or, to put it another way, Chris Finlayson did not spend nine years appointing members of the prison abolitionist movement to the bench.

Anyway, we avoided that crisis. And in words that none of us thought we would ever say, thank goodness for Attorney-General Judith Collins. Talofa, to the new silk. To whom much is given, much is expected, but we know she always gives back double.

Our Supreme Court didn’t issue another Fitzgerald type bombshell, mainly because these days the Court takes 18 months to issue anything. The appeal decision for Royal Forest and Bird v New Zealand Transport Agency has been reserved for over two years. It’s been so long that we’ve all had to prepare a secret intervention for the judges next February and lure them there on the pretext it’s a conference about 20 years of the Supreme Court.

We got Mainzeal. There is a perennial debate about whether our Supreme Court understands commercial law – an attitude mainly held by people who wouldn’t be satisfied by anything less than the ghost of Ivor Richardson presiding over every case. Let them whine. As Lord Mansfield himself once observed, it doesn’t matter what the rule is, just so long as there is a rule because that way large corporate law firms can do lots of client comms about it. Although, not to criticise, but the judgment seems to have failed to uphold one of the Supreme Court’s key constitutional responsibilities: infuriating Peter Watts KC.

It was the High Court that was the home of mildly subversive rulings this year. We had Parore v Attorney-General [2023] NZHC 1010 awarding legal costs as Baigent damages (although BORA damages have long been a cheque on the executive). We had New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183 that said that review for error of law is mandatory relevant consideration review now for some reason. And when that all got too serious we got James v Luxury Real Estate Ltd [2023] NZHC 1104 to tell us that shouting “fuck [this guy]” at someone wasn’t repudiation of a contract.

It’s a year in which I got beaten to within an inch of my life on a long-running difficult case that has been the most difficult of the nine or so years I’ve been doing this. And it’s a year that I’ve done interesting new law things. Both the bad and the good have made me grateful for supportive colleagues all the more. I hope you too have been blessed by the company of friends and loved ones.

Anyway, here are the prizes.

Best headline from 2023

I don’t know, man, I’m pretty sure they’re in favour, eh?

You will recall that this was in peak ramraid angst, where every columnist was calling for the Chief Justice to start personally installing bollards outside Michael Hill Jewellers or else have her Honour’s failure to do so be taken as proof positive that she was boosting Mazda Demios in her spare time. Tawdry stuff.

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Best headline from 2003

I’m pretty sure I read Ngati Apa in law school and while we all love a good reboot let’s not do this one again.

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Worst decision of 2023

This award was conferred at an earlier ceremony.

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“I was doing a bit” of the year

Stephen Franks saying he is less confident in Chapman Tripp legal advice if the writer includes pronouns in the signature block. The thing you have to know about eye-wateringly expensive, 150 year old, gigantic corporate law firm Chapman Tripp, named after one of colonial NZ’s powerful legal dynastic families, and lawyers to most extractive industry in the country, is that it’s woke.

 

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Best joke that wasn’t appreciated by any of you ungrateful bastards of the year

It’s because fraud unravels everyth- You know what? Never mind.

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Opinion piece of the year

The Treaty of Waitangi gave me a papercut, by Gary Judd KC. Published by ADLS LawNews.

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Best actor with general appeal

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Court of the year

Jointly awarded between the People’s Full High Court in Huntly:

And the Vagina Court:

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Tween birthday party disinvitation of the year

The ADLS Criminal Law Committee’s letter to the Minister of Justice saying that:

Invitations have been sent out in your name for an event at Parliament to launch a book authored by Professor Elisabeth McDonald, titled, “Intimate partner rape and the trial process: Research, reflections and reform”. It is likely that this book continues the author’s campaign for major changes to the conduct of rape trials.

It is the strongly held view of ADLS Criminal Law Committee that Professor McDonald’s work has harmfully influenced the legal landscape – to the detriment of those the law is actually required to presume innocent – and we suggest that her influence should not be further lauded.

Professor McDonald was one of the personalities behind the draconian ‘reform’ to remove the long-established right of defendants to lead relevant evidence as to sexual practices between the defendant and the complainant, within their prior relationship. That ‘achievement’ was enacted via the Sexual Violence (Legislation) Act 2021. Moreover, during her select committee appearance on the bill, Professor McDonald made comments that are reasonably interpreted as supporting the enactment of further circumscriptions as to even mentioning during trial, the prior relationship between the complainant and the defendant. I must let you know that the Defence Bar, will be implacably opposed to any further ‘reform’ along this track.

The whole thing is so great, by which I mean dreadful.

It would probably assist the profession if the Committee  could state for the public record any other academics whose work ADLS (now The Law Association) considers has harmfully influenced the legal landscape to the detriment of those presumed innocent. That would let us all avoid inadvertent further lauding so that the Criminal Law Committee may in future focus on its policy work and advocacy for members.

If The Law Association will continue to single out academics, please could I suggest Sir John Salmond who taught in Australia from 1897 to 1906 and for that reason should be considered suspect.

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Conference fee of the year

$2,799 for a conference? On current Baigent damages awards you would have to be unlawfully detained for eight and a half days in order to be awarded sufficient money to pay for a conference ticket. For $2,799 I want a conference goodie bag and a drinks function hosted on Arnold J’s yacht.

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Blog comment of the year

I didn’t write much this year, but I very much enjoyed this comment:

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The Golden 30 Foot Bargepole (awarded for best avoidance)

Awarded to the Supreme Court for once again declining to engage with the intensity of judicial review in Auckland Council v CP Group Ltd [2023] NZSC 53. Court-watchers will know that it is one of the Supreme Court’s longest standing precedents that it won’t say anything about intensity, and the Court boldly applied that approach here in what was at least a triumph for stare decisis.

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Special Achievements in Interpretation

You know when the state put a man on trial for murder and he said he was Japanese and we gave him a Japanese interpreter and we got halfway through the trial that also had a Japanese interpreter and then defence counsel found out that he only thought he was Japanese and even then only because someone from the Korean-New Zealand community contacted him to say “hey I saw this on the news and that dude is Korean”? No? Well that’s what happened, as recorded in Yad-Elohim v R [2023] NZCA 136. 

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Euphemism of the year

You had to read it at the time. You’re going to have to read it again now. Yes, misbehaving lawyers are just “tactile and socially vivacious”. Sick bags provided on request.

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Quote of the year (tangentially law-related)

A Marokopa local quoted by the Herald on the missing Tom Phillips (erstwhile alleged bank robber) and his children. 

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Feel-good planned terror attack of the year

This from R v G [2023] NZHC 434 as a reminder of the importance of kindness in all things. 

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Daftest thing I’ve read all year

Remember the Supreme Court decision in Moncrief-Spittle v Regional Facilities Auckland Ltd [2023] NZSC 20? That was the one that said that cancelling the venue booking for Lauren Southern and Stefan Molyneux was a demonstrably justified limit on freedom of expression, essentially because there was going to be a gigantic mob of people protesting and counter-protesting outside the Bruce Mason Centre and there was no way to keep people safe. 

Well, the Free Speech Union drafted a bill that would prevent that from happening again. Yes, we thought we left the term “heckler’s veto” behind in 2022 but it follows us still. 

The bill, which you can read here, includes a cl 3(a)(iv) that would prohibit organisations from taking into account health and safety responsibilities in deciding whether to host speakers. Then cl 5(a) would exempt them from prosecution under the Health and Safety at Work Act 2015. I don’t know what the answer is to difficult questions of free speech, but I don’t think it’s “commit crimes”.

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That’s all I have. See you next year where we’ll all be doing and judicially undoing three strikes again. Rest up. It’s going to be busy.

A pod of orcas off the coast of Spain has started attacking s 4 of the New Zealand Bill of Rights Act 1990 in a spate of episodes that has experts concerned.

Since 2020, the group of five or six black and white aquatic mammals has issued judgments that have left s 4 shaken and taking on water.

The string of incidents has left whale experts confused and constitutional scholars concerned.

“Orcas are very social creatures,” explained marine biologist Alfredo López Fernandez, a biologist at the University of Aveiro in Portugal. “We often see group behaviour that can include interactions with boats or what we interpret as play. But for them to be issuing 50 page written judgments about a key piece of New Zealand’s constitutional arrangements is something we’ve only started to see in the last couple of years.”

Constitutional scholar Dr Edward Willis told RNZ: “Of course, whales are not part of New Zealand’s hierarchy of courts so what they have written isn’t binding. However, if the orcas doing this turned out to be some sort of apex court for whales then it is possible that what they have to say would be of persuasive value when our own courts consider these issues.”

Researchers aren’t sure why the orcas are going after the legal principle but there are two hypotheses. The first is that this is a new fad among orca. Researchers have previously observed trends in orca populations that seem to come and go. The second is that this is a reaction to traumatic incidents involving other sections of New Zealand legislation. Scientists theorise that the orcas have come to associate lawfully enacted Acts of Parliament as a sort of threat and that the judgments are a response.

The whales’ written reasons, which seem to be becoming more frequent and intense in nature, have caused significant damage to s 4, which ordinarily prohibits courts from declining to apply any enactment by reason only that the provision is inconsistent with the Bill of Rights Act. Large parts of the wording have been slammed repeatedly and significant portions of the rights instrument are listing to one side.

Efforts to explain to the whales that s 4 is binding on constitutional actors within a legal system founded on Parliamentary sovereignty have been unsuccessful to date. Submissions made to the whales on the effect of s 4 have been left rudderless, with several being holed below the waterline.

“There was one orca that we seemed to be able to get through to,” explained López Fernandez. That was an older whale known to researchers as Free Willie. “However, he seems to have left the pod and his efforts to dissuade the others don’t appear to have been successful.”

A spokesperson for the Attorney-General said that the government was aware of the whales’ judgments. A New Zealand navy frigate – the HMNZS Chisnall – had been dispatched to the North Atlantic to monitor the situation.

The worst High Court decision of 2023 is called Ngāti Paoa Trust Board v Panel Convener [2023] NZHC 1328.

The COVID-19 Recovery (Fast-track Consenting) Act 2020 provides for expert consenting panels. Expert consenting panels decide resource consents for specified projects on fast-forward. An expert consenting panel “is administrative and quasi-judicial in nature and its practical purpose is to replace both the consenting authority and the Environment Court roles” (at [53]).

The Act tells the Minister to appoint a current or former Environment Court Judge to be the panel convener. The panel convener’s job is to appoint panel members. Local authorities and iwi authorities may nominate people for appointment, and the panel convener can appoint others as well.

Unsurprisingly, there are statutory criteria for appointment. Collectively a panel must have knowledge, skills, and expertise relevant to resource management issues; the technical expertise relevant to the project; and expertise in tikanga Māori and mātauranga Māori.

The panel convener is retired Judge Newhook.

Judge Newhook went to appoint an expert consenting panel for the Botanic Riverhead consent. Ngāti Paoa Trust Board nominated James Gardner-Hopkins. Mr Gardner-Hopkins’ name and actions will be familiar to you. He is not the focus of this post; the High Court judgment is.

After some correspondence, Judge Newhook declined to appoint him to the panel. Judge Newhook’s reasons were:

[21] I have come to the conclusion that acting reasonably and in good faith, I may also take into account other considerations than a person’s ability to perform the functions of office, because those extend to other factors relevant to participants and the broader public having confidence in the consenting process and the outcome, as well as in the decisions of the panel [convener] concerning the appointment of panel members.

[22] This includes that a person’s character and integrity is relevant to whether that person can perform the functions of office, and can be confidently perceived by parties and the public generally to be able to offer that.

[23] Because of the matters quoted from the High Court decision above, my conclusions in the immediately preceding paragraphs, and to a degree in the context of judicial comity with the decisions of the Tribunal, the High Court and the Environment Court cited above, I have decided to decline the appointment of James Gardner-Hopkins nominated by [the Trust] for this decision-making panel.

The Ngāti Paoa Trust Board applied for judicial review.

In the High Court, Churchman J declined the Board’s first ground of review relating to Judge Newhook’s power to say no. That turned on statutory interpretation. The Act did not require Judge Newhook to appoint a person where they were the only person nominated by an iwi authority. And Judge Newhook retained a “discretion not to appoint a particular person to a panel for factors outside of the prescriptive requirements [of the Act]” (at [58]).  That was an implied ancillary power in the statute.

But Churchman J upheld the Board’s second ground of challenge. Judge Newhook took into account irrelevant considerations in exercising that power. Justice Churchman considered two aspects to this.

First, Judge Newhook was wrong to consider that “judicial comity” was a reason to decline to appoint Mr Gardner-Hopkins. That was essentially founded on the basis that the Disciplinary Tribunal and High Court decisions suspended him from being a lawyer.

Previously, the Environment Court had concluded that letting Mr Gardner-Hopkins appear as a non-legal representative in court proceedings, while suspended from practice, would cause people to question what effect the Environment Court was giving to the Tribunal’s suspension order: Port of Tauranga Ltd v Bay of Plenty Regional Council [2022] NZEnvC 92. Comity spoke against him acting as a representative.

Judge Newhook had taken a similar view about his appointment to the expert consenting panel.

Justice Churchman was critical:

[87] … The application in the Port of Tauranga decision, if it had been successful, would have involved Mr Gardner-Hopkins appearing before a Court and acting as an advocate for, or otherwise representing, a party at Court hearings. This is different from acting as an expert panel member determining resource consent applications on their merits. I am satisfied the Port of Tauranga decision does not preclude the appointment of Mr Gardner-Hopkins to roles which do not involve fundamental incidents of legal practice such as representation and advocacy.

[88] In reaching this conclusion, I do not disagree with any of the reasoning in the decision in Port of Tauranga. I have found that the role of being a panel member is different to the role of being an advocate in a Court and is the type of work in the resource management area that the Disciplinary Tribunal expressly anticipated that Mr Gardner-Hopkins may be able to undertake during the period that he was disqualified from practising law. Judicial comity did not therefore require the Convener to decline Mr Gardner-Hopkins’ nomination, and the Convener erred to the extent he made his decision on the basis of the need for judicial comity.

But that’s not an error Judge Newhook made. He didn’t identify any need for judicial comity. He didn’t say that judicial comity required him to decline Mr Gardner-Hopkins’ nomination. He simply said his decision was “to a degree in the context of judicial comity with the decisions of the Tribunal, the High Court and the Environment Court”. In context, that is saying nothing more than the Tribunal, High Court and Environment Court decisions have commented on Mr Gardner-Hopkins’ integrity, and the public perception of letting him be involved in legal processes while his suspension is on foot.

That is absolutely something that Judge Newhook can take into account. You know how I know? Because Churchman J said it 23 paragraphs earlier:

[65] … It would be inconsistent with the purpose of the Act if a convener lacked discretion to decline a nomination even in situations involving clear evidence that a nominee would bring the panel, process and outcomes of the fast-track consenting process into disrepute and therefore lacked capacity to hold office in the terms described in Clark v Vanstone. Such an outcome would be contrary to the purpose, function and public nature of the consenting panel process.

Nor is Churchman J’s reasoning convincing when it says that Mr Gardner-Hopkins’ suspension should only restrict his appointment to roles that require him to represent someone or advocate. First, the expert consenting panel is quasi-judicial. That necessarily invokes the scrutiny of standing in the legal community. Appointment to a panel designed to partly replace the Environment Court sure seems like something we ought not to appoint disgraced lawyers to. What do the lawyers submitting on applications to the expert consenting panel feel about making submissions to a suspended colleague? Second, where did Mr Gardner-Hopkins get his expertise in resource management law? Could it be from his years of practice from being a resource management lawyer? On Churchman J’s analysis, regulatory authorities including the High Court of New Zealand have determined that Mr Gardner-Hopkins ought not to be afforded the privilege of acting as a resource management lawyer, but it is wrong to even take this into account when deciding whether he can be appointed to a state-funded position about resource management law.

The second aspect of irrelevant consideration review that Churchman J upheld relates to the assessment of Mr Gardner-Hopkins’ “character and integrity” (at [89]). His Honour held:

[89] … I do not consider that Mr Gardner-Hopkins’ suspension from legal practice (and the reasons for it) was a factor which should have been material in the Convener’s decision declining his nomination, as it clearly was.

Pause there. That’s not relevant considerations review. If Judge Newhook could lawfully consider the matter (and Churchman J accepts he could), then after that weight is a matter for Judge Newhook unless the decision became unreasonable in a public law sense. The High Court cannot review a decision-maker for the degree of materiality they placed on a relevant consideration.

His Honour continues:

[91] I consider that to prevent Mr Gardner-Hopkins from assuming roles outside those performed in a legal capacity on the basis solely of his suspension from such practice would be to punish him again for the same misconduct, which has already been fully dealt with in his suspension from legal practice, and in fact cut across the finality of the Tribunal and High Court decisions and orders.

The characterisation of “punishment” is not helpful. A Tribunal decision suspending one from practice for non-consensual touching of junior lawyers is not a clean slate mechanism. The suspension from practice means that he can’t be suspended again for the same thing. It doesn’t prevent people making judgements about his character. To test this reasoning, ask the question, could his conduct be considered as part of a decision whether to appoint him as a High Court Judge? Obviously, instinctively, yes! So it hasn’t been “fully dealt with” as Churchman J puts it. Because what we’re really relying on is the underlying conduct that the Tribunal and High Court have identified and publicly condemned.

And even if simply taking into account previous conduct as a reason to decline appointment was a “punishment”, how about we finish the first punishment before we decide whether something is punishing someone again? Here, Mr Gardner-Hopkins has not even served half of his three year suspension. The chance of rain is not unreasonable while you remain under a cloud.

Justice Churchman concluded:

[94] I consider that the Convener erred to the extent that he focused on past events and misconduct rather than the nominee’s ability to perform the role without bringing the panel into disrepute. Given the public censure in the form of the suspension from legal practice, the interventions in which the nominee had subsequently engaged, and the fact Mr Gardner-Hopkins has been held to account for his actions in receiving the maximum suspension from legal practice (short of being struck off), the risk of Mr Gardner-Hopkins bringing the panel into disrepute in the eyes of someone fully informed of the detail of the Tribunal decision is not a matter that justified the Convener’s decision.

[95] Accordingly, I consider the Convener erred in declining Mr Gardner-Hopkins’ nomination to the panel on the grounds stated. While the Convener was correct to note that he was entitled to take other considerations into account in determining whether to appoint Mr Gardner-Hopkins to the Panel, nothing in the Tribunal, High Court or Environment Court decisions required him to decline Mr Gardner-Hopkins’ nomination, nor indeed gave any good grounds to do so.

I think it’s that last sentence that prompted me to write this. Are there really no good grounds in the Tribunal and High Court decisions to decline to appoint Mr Gardner-Hopkins? Is there no obstacle to appointing a person to a position of power, no obstacle whatsoever, if that person has demonstrably abused a position of power in the past? Is it really the case that Mr Gardner-Hopkins has been “held to account for his actions” when he has not yet even served half of his suspension? Because that is what the High Court of New Zealand is saying in that last sentence. That is far more than a court needed to go on judicial review, but Churchman J chose to say this. And it’s deeply, deeply depressing.

Rehabilitation is possible. The Tribunal decision and the High Court decision record contrition on Mr Gardner-Hopkins’ part. There will come a day when he returns to the profession and he can look us in the eye. But, as I said near the start, he is not the focus of this post; the High Court judgment is.

I am not asking for eternal punishment but, damn it all, some medium-term consequences would be nice. I refuse to accept that we can be in moving on, forward-looking territory when a practitioner has not yet at least finished serving their penalty and we’re contemplating their appointment to a state-funded quasi-judicial panel.

Justice Churchman pointed several times to the Tribunal decision and what it said about not intending to prevent Mr Gardner-Hopkins making the most of his skills in resource management. I’m not quite sure what the Tribunal would have made of this one. But that’s not the paragraph in the Tribunal’s decision that should cause us to reflect. It’s this one:

[185] We wish to comment briefly on the effects on the complainants, and the other two (then) junior women lawyers who gave evidence. Of the group, two have left New Zealand – one specifically as a result of these events; at least one has left the profession; another changed her area of practice so as to avoid contact with Mr Gardner-Hopkins (especially after he was elected President of the Resource Management Lawyers Association); another felt her career had been adversely affected. It is a mark of shame for the profession that its most junior members have shouldered the burden of bringing these events to notice, but it reflects only positively on them.

One of Mr Gardner-Hopkins’ victims left resource management law after he was appointed to a position of power and responsibility in the area. The response of the High Court to his prospective appointment to another position of power and responsibility in the same area is to say that nothing he had done “gave any good grounds” to refuse him. More than that, the High Court ventured that “someone fully informed of the detail of the Tribunal decision” would conclude the same (at [94]). Consider me uninformed.

I don’t know if Mr Gardner-Hopkins will get to sit on an expert consenting panel. It’s not clear that Judge Newhook will have to make a fresh decision since he has already appointed other people. And expert consenting panels will cease to exist when the legislation auto-repeals in a month or two anyway.

But the pass that the High Court has given this episode leaves me thinking about the last six years. Is this going to be the profession’s response? You can’t keep a good man down, they say. But actually it turns out you can’t keep any man down. One free bauble of office for everyone who makes it halfway through their suspension. Expert consenting panels filled with people whose expertise in consent is deeply, deeply ironic. Mostly, though, I’m thinking I don’t know what the fuck we’ve learned. And that Tribunal paragraph.

2022 has been another year of unrelentingly grim challenges for us all: ramraids, violent protests at Parliament, more Covid cases than ever, a cost of living crisis, Capital Letter editorials. And, while there is still a month to go in this year, there is not a lot left in the tank of this tired hack. Time to start wrapping things up. 

It has been another tough year for the judiciary who continued to be accused of supporting a tyrannical government oblivious to human rights, at least so far as the Covid response goes. The irony being that as soon as a New Zealand judge actually does support a tyrannical regime their conscience tells them to quit after less than a fortnight in the role. Still, grim to reflect on the hard times judges have for retirement jobs these days. Robin Cooke went to the House of Lords. Thomas Gault became the captain of the Royal and Ancient Golf Club of St Andrews in Scotland. All William Young J could get was a part-time gig as a velvet glove to some iron fisted despots running an international arbitration centre, and he beat the Lowell Goddard shortest-time-in-role record by some months. None of this would happen if Stephen Mills KC was allowed to take judges sailing again.

In the workplace the trend of the year has been Quiet Quitting, which is when you resign your judicial warrant before the Judicial Conduct Commissioner can say anything. In the big firms there are about three solicitors with 4 years PQE left in the entire country. The rest are in the UK. (ARD and LXL – if you’re reading this, come back!)

We’ve had Make It 16, and Fitzgerald v Attorney-General and the Chisnall hearing. I think 2022 is what the 1990s must have been like. Every day you wake up and the Bill of Rights Act is being used in new and exciting ways. And also there’s a Cooke, Ellis, Gault, Thomas and Goddard on the bench. (To be clear, I was alive in the 1990s but East Taieri Preschool didn’t have a subscription to the NZLRs.)

Our Supreme Court has had to put up with the commentariat calling them judicial activists. This must come as a surprise to the judges – a group of people in their 50s and 60s with knighthoods and state pensions, who divide their time between the bench and the Koru Lounge. Even I – a perpetual disappointee when it comes to Supreme Court decisions – think that we can do better than throwing the old judicial activism label around. After all, you go to the Court of Appeal for error correction; you go to the Supreme Court for era correction. And while it’s true that recently the only thing surprising about a constitutional orthodoxy is that an appellate court has chosen to adhere to it, I would still like to see an improvement in the quality of our complaining about the Supreme Court in 2023. I will be auditing this.

Anti-mandate protesters at Parliament didn’t succeed in erecting a scaffold in front of the Court of Appeal but they did throw up a block of toilets. There’s a metaphor in there probably. Still, the Court of Appeal came through it okay despite being in the centre of the protests. Court of Appeal judges have long experience in ignoring  people who appear in front of them to make outlandish demands. The scaffold came later in the year; Cooper P succeeding where the protesters failed.

For more of Cooper P’s achievements you might like to read this.

Queen’s Counsel became King’s Counsel on the death of the Queen. Most of the rest of the legal system will carry on the same. For example, a change in monarchs won’t alter how serious crime is prosecuted. Most will be done by King Charles’ Crown Solicitors, and the rest will be done by King Charles’ panels. And that’s the only joke I have about that, except this photo:

 

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Time to hand out the gongs. Remember, one Strictly Obiter Law Award is worth three New Zealand Law Awards and is equivalent to a top ten ranking in the Lawfuel Power List.

Best root and branch reform of the year

Sometimes you just need some good old-fashioned constitutional spadework.

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Air New Zealand Safety Video Award for Best Legal Procedure

The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. In the event of a judicial conduct investigation, emergency escape path lighting will guide you to the nearest exit. 

Two different judicial officers quit this year, scuppering a judicial conduct panel and a JCC investigation. It leaves us no wiser about judicial (mis)conduct in two incidents that were significant enough to warrant resignations. Our judicial system as the same level of accountability as I have when I sneak a third gingernut at supper. It’s not that judicial conduct panels are powerless to do something; it’s that they’re powerless to do anything.

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The Freedom Costs A Buck Oh-Five Award

The Serious Fraud Office. They say you can’t put a price on privacy, but that didn’t stop the Crown from trying in the election donations trial. Having charged the defendants with obtaining a benefit by deception, the Crown needed to prove what that benefit was, and that it was worth over $1,000. One limb of the Crown’s case was that the benefit was “freedom from scrutiny”. But what’s that worth? Gault J says not provably more than $1000 in this excerpt from R v Zhang [2022] NZHC 2541:

Still, it’s good news for anyone who succeeds in establishing a privacy breach by the SFO in the future. You can cite this decision as agreement by the SFO that your privacy was worth at least $1000. 

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Judicial photo of the year that is not the Chief Justice and Minister of Justice planting a tree

Yes, it’s Goddard J in a virtual reality headset. The Member of Parliament for Molesworth Street visited the National University of Singapore. Technology under development there will enable Court of Appeal judges to better understand District Court practice. 

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Law reform of the year

Occasionally, very occasionally, having a good old moan on Twitter can achieve something. 

That (and a few more tweets on the subject) were sent off into the ether. Then, six days later, a new Court of Appeal Civil Practice Note appeared, with a new clause inserted. 

A little bit post hoc ergo propter hoc here. But I’m claiming it as a win! The system works!

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Euphemism of the year

The reason given for the withdrawal of legislation to reform journalistic source protection: “insurmountable drafting issues“. Since then, this has been my go-to excuse whenever my bosses chase work from me. 

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Strenuous denial of the year

Marc Corlett KC giving the defence opening statement in the election donations trial. This was a judge-alone trial! If this had to be elevated for a jury it would have blown out the windows in the courtroom.

As reported by The Spinoff:

Marc Corlett QC, who is acting for the man who purchased the paintings related to the Labour donations case, said the SFO case appeared to have been “reverse-engineered to meet a preconceived investigative assumption that there must be a parallel ‘structure’ between the Labour Party and National Party cases”. The prosecution, he said, was asking the court to “draw inferences … that cannot be drawn without rabid speculation and a disregard of the burden of proof and the presumption of innocence”. The case against his client, he contended, was “the product of a fertile investigative imagination which has harnessed the innocuous and ridden the high horse of confirmation bias to a land of fantastical conclusion”.

The case, Corlett continued, was “a theory in search of evidence … animated by predetermination, fuelled by speculation, and dependent on some Eurocentric, cringe-inducing cultural assumptions.” He pledged that the substantive trial meant “it no longer suffices for the Crown to throw up fairy dust and say – ‘see, this evidence is consistent with our fertile imagination of what [the suppressed defendant] might have done’”. 

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Judicial photo of the year that is not the Chief Justice and Minister of Justice planting a tree or Goddard J wearing a VR headset

You can’t tell me this guy doesn’t run the 2.15pm sentencing list in Invercargill District Court. This bloke has presided over more livestreamed trials this year than every High Court judge combined. More likely to be subject to an adverse finding by a judicial conduct panel than a real judge. 

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New human right of the year

A big year for rights discourse. As s 28 of the New Zealand Bill of Rights Act 1990 reminds us: “An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.”

Taking that message to heart was an anti-mandate protester arrested at a Rotorua restaurant, as reported by the New Zealand Herald:

As Desmond Tutu once said, “I am not interested in picking up crumbs of compassion thrown from the table of someone who considers himself my master. I want the full menu of rights.”

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Law Firm That Most Sounds Like Something From The Edmonds Cookbook Circa 1950

Woodward Chrisp

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The “Law Is Just Common Sense, Really” Medal

Pere v Attorney-General [2022] NZHC 1069, [2022] 2 NZLR 725 for “establishing” that being shot in the back while detained in Police custody breaches the detainee’s right to be “treated with humanity and with respect for the inherent dignity of the person”.

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Triumph of monism over dualism of the year

The Freedom and Rights Coalition’s People’s Court. A movement virulently against the strawman of United Nations control purported oversee the direct domestic application of an International Criminal Court trial in the grounds of Parliament. 

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Sovereign citizen of the year

Connor the Dog. In James v District Court at Whanganui [2022] NZHC 2196 a Sovereign citizen argued that his dog was a Sovereign citizen. 

For more on Sovereign citizens you might like to read this piece.

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Supreme Court decision of the year

Harding and Berkland v R.

We’re being told that Harding and Berkland v R couldn’t be here due to insurmountable drafting issues, so to accept the award on its behalf is Attorney-General v Family First. 

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Twitter civil war of the year

Lecture recordings! Were you on the side of the coddled and the lazy, who would miss out on the benefits of coming to campus? Or were you on the side of the heartless and out of touch, with no idea of the pressures of modern life? Either way, you were in the wrong. Grim times for us all. Olive branches were fashioned into sharpened stakes. The uneasy truce holds to this day, but only because we’ve all agreed not to speak about it any more. 

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Worst legal argument of the year

Business New Zealand. Business NZ makes a complaint to the International Labour Organisation about the Fair Pay Agreement Bill. Then Business NZ publishes a document that says New Zealand is on a list of the worst case breaches of international labour treaties. Except…

Just absolutely terrible. Real “only read the headnote” stuff. 

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Judicial diversity award

Having a High Court bench made up from people of all backgrounds is important. They bring their own life experiences to the important business of judging. Like this in R v Fakaosilea [2022] NZHC 2984, where Campbell J knows that it’s possible to buy several ounces of cocaine in a few hours.

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May you survive until the end of year break, and may all your reserved judgments be delivered before Christmas. 

 

Ten headlines. Can you tell which ones are about the Supreme Court of New Zealand?

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Question 1

Answer: This one is about the Supreme Court. There were a few clues here. “Make It 16” is a recent Supreme Court decision, and the headline in fact uses the words “Supreme Court”. 

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Question 2

Answer: This one is also about the Supreme Court. Part of the Supreme Court’s role is to “scrutinise” convictions in the context of appeals. The headline also uses the words “Supreme Court”. 

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Question 3

Answer: This one is not about the Supreme Court. The Supreme Court’s role is to write reasoned judgments explaining their thinking, that is open to critique by any reader. They are not generally required to glue themselves to roads.

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Question 4

Answer: No, this isn’t a trick. Although it refers to only to the “Court”, this is still the Supreme Court. 

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Question 5

Answer: This one is a trick though. This *isn’t* the Supreme Court. Supreme Court judges have their pensions and the Judicial Conduct Commissioner to think about. 

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Question 6

Answer: While the Supreme Court sometimes rules against the Crown it does so in accordance with the law and its constitutional role. It does not use cake.

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Question 7

Answer: It is true that the judges of the Supreme Court are in their 50s and 60s, but we got you again! This is not about the Supreme Court.

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Question 8

Answer: Yes! The Supreme Court! That’s right. We’re laughing, we’re learning. 

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Question 9

Answer: Again, this refers to a ruling by a group of people with knighthoods paid hundreds of thousands of dollars by the state. 

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Question 10

Answer: Something of a line call, depending on whether you are subject to a civil restraint order or not, but this is not about the Supreme Court.

 

There is a lot to like in Fitzgerald v Attorney-General [2022] NZHC 2465, which is otherwise a sort of Transformers Movie of judgments: lots of explosions, several parts that I couldn’t follow, and liable to result in more sequels than anyone wants. 

I’m pleased that Mr Fitzgerald got compensation. I like the strong assertion of the Bill of Rights Act over prosecutors’ conduct. Either Mr Fitzgerald’s counsel or Ellis J or both did a really good job of laying out a path to make the question of the charging decision a question of law with a right and wrong answer, rather than a question of discretion. 

But (through no fault of Ellis J) the judgment doesn’t stand on the shoulders of giants. Instead those giants’ shoulders cast looming shadows which mean the judgment has to twist in weird directions all in search of some daylight. Daylight in this tortured metaphor being the right outcome (compensation) but not the right answer (why that compensation is being paid).

There are two giants. The first is the three strikes regime (and I use that word advisedly) itself. They say hard cases make bad law but bad law also makes for hard cases. When Parliament takes away judicial discretion for sentencing the judiciary will first maximise whatever small levers they’ve been left with. That saw courts finding manifest injustice on every third strike sentencing except one, and excluding one or two others where a sentence of preventive detention was imposed instead. Then the courts will create levers of their own. That saw courts finding ways to reduce sentence length precisely in response to the effects of three strikes (which is extraordinary): see Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49). Then the courts will go further. In Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 the Supreme Court found a way to say that in some cases a court could simply not apply an act of parliament. That is more than extraordinary. And Parliament and the Crown are now stuck with that ruling on the books. Maybe it won’t be used again – maybe it’s just a reaction to three strikes. But what a colossal strategic error by Parliament to push things so far that they get in writing a judgment that says maybe we don’t have to listen to you. Lord Cooke talked about deep lying common law rights. In the 2020s, the message from the courts is fuck around and find out. 

But even with the New Zealand judiciary operating at times as a sort of partisan resistance, there was only so much that could be done. Courts continued to apply three strikes until a change of government pulled the plug. There is a human cost to three strikes. That cost is borne by the persons detained in breach of their rights, and by their victims who have their individual cases turned into causes célèbre where offenders are the main characters. Now the courts are conducting an accounting for the rights breaches along the way. Rightly, there is a strong moral imperative to do something. 

The second giant casting a long shadow is Chapman v Attorney-General [2010] NZSC 110, [2012] 1 NZLR 462. No damages for breaches of the Bill of Rights Act for judicial acts. Judicial acts like imposing a sentence that is so long that it breaches ss 9 and 22 of Bill of Rights Act. Maybe you agree with the policy reasons behind the holding in Chapman, maybe you don’t (and the UN does not). But it has distorted rights litigation in this way: the Crown likes Chapman when it lets it say “well it wasn’t really the executive that breached your rights, it was the judiciary, and Chapman says there’s no cause of action, so that’s the answer”. And, in turn, that requires plaintiffs to go wide and try to explain why the breach was actually the result of an act of the executive. Sometimes that works (Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR 206) and sometimes it doesn’t (Putua v Attorney-General [2022] NZHC 2277). Both in Putua and here in Fitzgerald Ellis J has been valiantly trying to get out from under Chapman on the facts. And anyone doing any thinking about this Fitzgerald judgment should read Putua – it’s a good companion piece.

Mr Fitzgerald’s damages claim emerges thus. His rights were breached. So says the Supreme Court. In fact, the Supreme Court says the judge ought not to have sentenced him to his seven year sentence. Something needs to be done, but as long as Chapman is the law no one’s allowed to say it’s the court’s fault for sentencing him to a long sentence. 

In her Honour’s judgment, Ellis J sets out how the charging decision was unlawful. I quite like the reasoning here. And I think we have an underdeveloped jurisprudence of how administrative law principles inform criminal law in general, so really like this judgment as a step forward. I hope there will be more interesting case law that comes out of the increased visibility of the justiciability of charging decisions.

Justice Ellis sets out why the prosecutor was under a legal duty, and how it was breached. The duty is articulated as an obligation “to exercise their prosecutorial discretion in a way that avoided the risk of Mr Fitzgerald becoming subject to a disproportionately severe punishment on sentencing” (at [169(b)]). And that duty was breached by laying and maintaining the charge (and possibly (I read the judgment as saying) advocating for the sentence).

But if that’s how the duty is articulated, and that is how the breach is framed, then how does vindication of the corresponding right translate to damages for Mr Fitzgerald’s punishment or detention? By exposing Mr Fitzgerald to the risk of detention, the Crown prosecutor did not create his detention. By exposing Mr Fitzgerald to the risk that he would become subject to a disproportionately severe punishment, the Crown did not in fact impose on him such a punishment. The duty that Ellis J articulates ends with the words “on sentencing”, but then the judgment suggests sentencing is some mechanical process with a mechanical result. 

A judge of the High Court decided what sentence to impose on Mr Fitzgerald. The Supreme Court has set out that the judge could in fact depart from the Act and did not need to impose the sentence. I read this latest judgment as placing weight on the fact that the prosecutor instituted the process – that they set in process a motion that culminated in sentencing. And it’s for that reason that the Crown is responsible for the detention that resulted. 

That seems to minimise the agency of High Court judges carrying out sentencing. When passing sentence, judges do not simply do what the Crown tells them. Mantra-like we hear that sentencing is quintessentially a judicial function. But if it’s a judicial function then Chapman will swing in to remove the ability to award damages. To get the result, it has to be the prosecutor’s fault and so, necessarily, the sentencing judge’s decision about how long the sentence will be and the sentencing judge signing the warrant of commitment that authorises detention fade into the background like Homer Simpson into a hedge.

Justice Ellis was willing to accept that there would be a twin responsibility: both the prosecutor and the sentencing judge both had duties to avoid breaching rights. I agree. But only one of those two has the power to impose detention. And, even if the responsibility had to be shared, why is the entire damages award borne by the Crown prosecutor? The answer to that might lie in the fact that Baigent damages aim to vindicate the right, but I think that simply emphasises the question of what right did the prosecutor breach – not the right to be free from detention!

None of this is to step away from a finding that the prosecutor’s decision may be unlawful in its own terms. But the answer to that is a declaration in standard JR but probably not Bill of Rights Act terms. And remember the Supreme Court did not question the correctness of Mr Fitzgerald’s conviction, so there is no ability for the High Court here to collaterally undermine the conviction by going all in on the charging decision. The end result of this judgment is the prosecutor must pay for deciding to lay a charge that led to a safe conviction. 

And that really leads to the hint of a strange double standard in all of this. I like Ellis J’s judgment as a call to arms to the Crown from the judiciary: “just as the judiciary did its part in trying to mitigate the rights-breaching aspects of three strikes, prosecutors ought to have been doing the same thing. We will follow the consequences of the Supreme Court’s decision in Fitzgerald wherever they lead”. But that ‘we all have to play our part’ approach sits unhappily with Chapman. We all have to play our part but it can never be the judiciary’s fault. That is a part-time commitment to the Bill of Rights Act. Chapman prevents the right answer: Mr Fitzgerald’s right to be free from arbitrary detention was breached by the long third strike sentence. That sentence was imposed by a court, but that won’t stop this court from awarding Bill of Rights Act damages because what matters is vindicating rights where they are breached. And also, bloody hell, prosecutors should have been a lot more awake about this too. 

I don’t like the reasoning in Fitzgerald because it reaches too far to dodge Chapman. I like the outcome in that compensation is awarded for a rights breach. But the right that was vindicated for the damage in this case was not breached by the acts complained about. With Chapman as the law, there was no viable path to awarding Bill of Rights Act compensation. The issue is not Fitzgerald, it is not Ellis J (who is bound by Chapman and whose task was to deal with pleadings framed in light of Chapman), it is not how Mr Fitzgerald or the Crown ran their cases, it is not even really three strikes though that set a lot of this in train. It is about how Chapman has distorted how rights litigation is pleaded, argued, and decided. 

Anyway, I didn’t mind Transformers. But something’s gotta give before we end up with a Bumblebee.

The great man theory might be on the run in history but it flourishes still in the law where judges and silks are heroes and villains (or villains and heroes). In a world of Power Lists and Lawyers of the Year, we risk overlooking those whose roles do not come with pedestals.

Vicki McCall did not have a pedestal. She didn’t need one to be one of the most effective, knowledgeable, and kind administrative lawyers in the country.

As Crown Counsel she acted in high profile cases and advised the more coercive arms of the state. The cases were difficult and sensitive: the type where, for the Crown, any defeat required careful reflection and any success restraint and modesty. In this she was a role model and the embodiment of a Crown lawyer.

She held a deep, deep knowledge of constitutional and administrative law, and the Bill of Rights Act. I favour Smith over Joseph, but McCall surpassed them both. To that she also brought a litigator’s eye. “You’re going to need some evidence on that by the time you get to the section 5 analysis,” she once told me in response to hearing my theory of the case. I dutifully returned to edit my draft affidavits. You disregarded Vicki’s advice at your peril.

People, I think, underestimate the internal commitment of government to the rule of law. But that internal commitment exists only because of principled lawyers like Vicki: someone who felt deeply the responsibility of a Crown lawyer to see the Crown conducts itself lawfully. Find the fun where you can, but standards Will Not Slide. The hard work that required was met with a rolling up of the sleeves. And she matched her determination with a game ruefulness about Crown legal practice born of pummellings in the senior courts. Getting to learn from someone who handled difficult briefs so philosophically, I wondered whether I ever got the balance quite right. In a militant moment I once ventured to her that the Crown isn’t expected to be a punching bag. She replied with a deadpan that “Those are the words of someone who hasn’t appeared in the Court of Appeal very much.”

She was a mentor and a friend and I was not alone in benefitting from her guidance. Many will describe in similar terms her quiet support and kind words. A host of young Crown lawyers will be proud to tell you they learned from Vicki McCall. That same host mourns her now.

Her patience and kindness extended to always being available for a panicked phone call. Does constabulary independence mean the Solicitor-General can’t dictate the conduct of Police civil litigation? What sort of s 5 analysis do you need to do when the right already has an internal modifier? What’s the New Zealand equivalent of Miss Behavin’? I bet Vicki will know. She once called me to ask a question about some trivial corner of the law and I lunged for the chance to pay back a small part of the massive professional debt I owed her. When I left Crown Law I began working off the rest one coffee catch up at a time.

She had an up-to-date repository of pop-culture references and a sense of humour anchored in classic Simpsons lines. Privately she would describe dud decisions with a vocabulary both inventive and robust. She disfavoured air travel and would fly with an innocuous-looking Pump bottle that just might have been full of G&T. A hardcase for hard cases. You would have liked her.

From Rangitoto College, the University of Auckland, then clerking for McGrath J in the Court of Appeal and Supreme Court. Harvard and giant American law firms. Then Russell McVeagh and Crown Law. More lay ahead. I wish I had been able to say this to her at her swearing-in one day. It would have been an honour to appear in front of McCall J.

We don’t need the great man theory in law. And most times if you get famous as a Crown lawyer you’ve probably done something very wrong. But we owe it to our best to share their stories and mark their passing. Vicki McCall was one of our best. My thoughts are with her family and friends. I will miss her very much.