An appeal judgment

Introduction

Since this is a judgment under two hundred paragraphs long, I will not begin with a faint stab at poetic licence by describing the physical setting of the events.  It’s a judgment, not some milquetoast TripAdvisor review.  Rather, it is enough to record that on X date, the District Court made the decision under appeal.  If I’m going to allow the appeal, I’ll either name the judge once in passing or, if I thought they really borked this one, I’ll omit their name entirely.  If I’m going to dismiss the appeal, I’ll give the District Court judge’s first and last name, IRD number, star sign and find a way to work in the fact they are an “experienced District Court judge” somewhere around paragraph 25.

Next I’ll state what the appellant’s grounds of appeal are.  These will largely be my gloss on what were incoherent grounds in submissions.  The sole exception is the one hopeless ground that appellant’s counsel stuck to despite my best efforts during the hearing to dislodge them from that rocky redoubt.  I will faithfully record that but with liberal use of inverted commas.

Then, briefly to the respondent’s position.  As usual, all the respondent has done is say “no it isn’t” every time the appellant has said “yes it is”, which is the height of advocacy for a seven year old.

As a final introductory remark I’ll regret the time it has taken to deliver this decision.  This judgment is being released one day short of three months after the hearing, because the cut-off for timely delivery stats is three months, and the Chief High Court Judge will get on my case if it ticks over to the three-to-six month band.

The facts

If we’re lucky the appeal is on a point of law so I can rip these from the decision below and just whack them in a blockquote.

If it’s an appeal against factual findings I have to carefully rewrite the facts from the decision below in my own words so it doesn’t look like I’ve ripped them from the decision below and just whacked them in a blockquote.  When it gets to the challenged facts I have to go back to the briefs/statements and transcripts of evidence, hardly any of which are pinpointed in the parties’ submissions but all of which have exploded comically across my desk.

Lastly, one of the parties spent a good 25 minutes at the hearing talking about one factual dispute which is now basically pointless because (a) it’s not material to my reasoning; and (b) I can’t read my own handwriting from the notes I took at the hearing.  Nevertheless I have to give that an airing in three or so vague paragraphs because if I don’t one of the parties will accuse me of overlooking it.

Test on appeal

Definitely a general appeal.  I think.  It’s usually a general appeal.  Anyway, time to find one of my old judgments and copy and paste the usual bit about Austin, Nichols or Kacem v Bashir or Tutakangahau v R.  

The grounds of appeal

One side’s submissions blow past any reasonable page count and the other side’s only meet it because they’ve not complied with rules about line and paragraph spacing.  Nevertheless, the job of a judge is to rise above.

Start with the only decent point in the entire thing.  Usually it is sub-point (d) of the third ground of appeal and occupies about two paragraphs of the written submissions.  But it’s the only point in the case that will let me get to the right result so the judgment will take a few liberties with how it’s characterised.  From that spark, to a blaze with the help of a few authorities my clerk found and at last we’re getting somewhere.

The respondent’s submissions cite unimaginative Court of Appeal decisions mostly from the 1980s and all before 2010.  It is just a wall of appellate authority saying you can’t do what the appellant wants to do, but in very general terms.  The submissions make no attempt to grapple with the individual justice of the case and proceed on a mistaken assumption that this is my first rodeo and some old Court of Appeal decisions can stop me.

Decision time.  This goes one of two ways.  To allow an appeal, I work forwards: find a very broadly expressed principle in the governing statute that can be used to support my reasoning.  Then, I’ll build upon this edifice ensuring the reasoning comes out in a “this is what Parliament wants” kind of way, and there are sufficient sockets to plug in the facts.  To dismiss an appeal, I work backwards: it’s a matter of saying the end result was correct, and after that any error by the court below didn’t or couldn’t affect the outcome.  At paragraph 25 I mention the fact there was an experienced District Court judge.  In extreme cases, I refer to the busy District Court list: the home of errors but not injustices.

The other grounds I can blitz through because they were only put out there on an “in for a penny” basis by counsel who mistakenly believed a person can have more than one good idea per case.  The grounds that don’t have a complete answer in the governing statute find one in common sense.

Result and disposition

I conclude by restating my conclusion as to the error or lack thereof.  If there is an error I need to state what to do, which normally involves overlooking the impact of some internecine interlocutory wrangling that neither party has told me about and which will force me to recall the judgment in a week or two to restate the relief.

I’ll give a tentative indication of any costs consequences that both parties will ignore, and so I’ll place a miserly page limit on costs submissions knowing that that will be ignored too.

Bold, novel, ambitious, and valiant

In Midland Bank Trust Co Ltd v Hett, Stubbs & Kent (a firm) [1978] 3 WLR 167 (Ch D), Oliver J wrote (at 183):

Mr. Harman’s submission seems, at first sight, a bold one, for there is a formidable and continuous line of cases, some of them decided since the Hedley Byrne case [1964] A.C. 465, which assert that a solicitor’s relationship with his client is a contractual one only and gives rise to no liability in tort. But boldness and wrongness are not synonyms and although justice is said to be blind, the doctrine of precedent does not prescribe that the court must blindly follow previous decisions without considering their rationale and the impact upon them of subsequent authority.

It is not clear that is the position in New Zealand where most bold submissions are missing, presumed dead.  For example, in West Coast Environmental Network Inc v West Coast Regional Council [2013] NZEnvC 42 we have:

WestCoast

Bold comes in many flavours.  A submission can be “somewhat bold” (Harrison v Harrison HC New Plymouth AP18/00, 11 September 2001 at [19]).  It can be “to say the least, a bold submission” (R v Tye [2007] NZCA 330, [2008] 1 NZLR 214 at [17]).  It can be “extremely bold” (R v Eide (2004) 21 CRNZ 212 (CA) at [80]).  Or, worse, it can be “with respect … a bold submission indeed” (New Zealand Tamil Society Inc v Caisley HC Auckland CIV-2011-404-160, 13 October 2011 at [8]).  And the only thing worse than a bold submission rejected summarily is for a court to note that “[t]hat was a bold submission – I am not sure that Mr Thorp appreciated quite how bold – but in any event I will deal with it”, then proceed to absolutely wreck you for the next five pages (Butler v Countrywide Finance Ltd [1993] 3 NZLR 623 (HC) at 631). 

There is no greater hallmark of defeat than to have your submissions tagged by a judge with a positive adjective.  Compliments are the handmaidens of judicial rejection.  I defy you to find a “valiant” submission that a Court has ever accepted.  Or a brave one.  

So too with optimistic submissions.  “Optimistic it may have been, but Mr Fairbrother submitted that optimism at the defence bar is not necessarily a bad thing in an adversarial system” (R v Huang [2009] NZCA 527 at [58]).  That submission was itself… optimistic.  Courts note when submissions are “highly optimistic” (R v Weatherston [2009] NZCA 267 at [30])  or when they are made with “a surprising degree of optimism” (A v R [2007] NZCA 448 at [29]).  A submission can be “optimistic and untenable” (Wenzel v R [2013] NZCA 403 at [64]) or “optimistic, if not plainly ingenuous” (Burke v Superintendent of Wellington Prison [2003] 3 NZLR 206 (HC) at 218).  And when courts are feeling really mean then “[o]ptimistic would be a charitable description of the last of Mr Comeskey’s submissions” (R v Huang [2008] NZCA 46 at [53]).  

Meanwhile, the less convincing a submission the more ambitious it becomes.  At the first level one gets an “ambitious submission” (Austin v Police [2013] NZHC 54 at [14]).  Next, “a very ambitious submission” (Harrington v Wilding [2019] NZCA 605 at [42]).  Then, “an extremely ambitious submission” (Duff v R [2020] NZCA 116 at [16]).  And, lastly, if counsel has not already cringed themselves out of existence, a Court will describe your case as “with respect, an extremely ambitious argument” (Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA) at [152(b)]).

Novelty is not a compliment – not for submissions that are “somewhat novel” (R v Manuel [2020] NZHC 2587 at [20]), “rather novel” (Schuler v Grant [2014] NZCA 91, [2014] NZCCLR 19 at [40]), nor “novel and startling submissions” (Haig v Edgewater Developers Ltd (No 5) [2012] NZEmpC 189, [2012] ERNZ 543 at [69]).  And for true novelty value, the submission ought to be recorded in full: “The suggestion that an order for costs of the High Court constitutes the proceeds of crime is a novel submission and … is ludicrous.” (Gibson v Dental Council  HC Auckland CIV-2010-404-230, 28 June 2010).  

If any of this comes as a surprise, then it shouldn’t.  Judges love to record submissions as “surprising”.  Submissions can be “somewhat surprising” (Field v R [2010] NZCA 556, [2011] 1 NZLR 784 at [186]), “rather surprising” (Taylor v Attorney-General [2016] NZHC 355, [2016] 3 NZLR 111 at [142]), “doubly surprising” (Paros Property Trust Ltd v Smith [2019] NZHC 1657 at [3]), or “distinctly surprising” (R v Guild CA219/04, 11 October 2004 at [82]).  And in one of the best instances of a “nice try” on our books: “This most novel and surprising submission suggested an ingenuity deserving of a more worthy cause.  It is, in my view, plainly untenable.” (McCormack v Ministry of Transport HC Wellington M732/87, 1 March 1988 at 3).  

So, if you have enough courage (noting that “a courageous submission” will also come in for comment: Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462 at [213]), you too can advance bold, valiant, optimistic, ambitious, novel, surprising, brave and courageous submissions and go down in a screaming heap. 

But that would be to ignore the lessons of the cases above.  The smarter play is to ensure your submissions are craven, weak-willed, hackneyed, and knackered.  That all but guarantees their acceptance.  Goodness knows it’s what I do.  And it’s the only way to avoid a situation where things get so bad your submissions are described as “heroic” (Police v Holland [2009] DCR 152 (HC) at [20]).

Towards a national emergency stockpile of interesting reserved judgments

sns-warehouse-1

Auckland has returned to Alert Level 3 and I have returned to the desk in my spare room, where I get cooked by the sun from the hours of 11.30am to 3pm.  I am very lucky to be supported by my employer and my colleagues, to have a well-paying job that I can do during a lockdown, and to have ready access to home-cooked, carb-based lunches.   The worst I have to contend with is a combination of heat and lunch pasta causing me to use the word “unimpugned” in a statement of defence in the early afternoon haze.  People across Auckland and across the country have it far tougher than me.

In normal times, like most people, my spare minutes and quiet moments are spent skim-reading new cases on www.nzlii.org.  Mainly the senior courts, but with a smattering of disciplinary tribunals and the Legal Complaints Review Officer.  As I’m sure it is for many, it’s a sort of reassuring compulsion.  Interesting cases to be filed away in the back of one’s head; typos and approximations of jokes screenshotted for Twitter; costs decisions acting as a flag of cases from months back that may have flown under the radar; new syntheses of case law of a particular area.  It’s a comfort to bob on a vast sea of case law, even if the fine detail of the sea floor remains out of view to casual anglers like me.

But what in normal times is a reassuring compulsion, in alert level 3 becomes a lifeline.  Just as man cannot live on bread alone, so too is it difficult to sustain one’s self through lockdown with only a steady diet of judgments on discovery obligations from Associate Judge Lester or sentence appeals from a divisional court.  The background stresses, the distractions, the poor posture of a dining table chair, the digestive effects of too much lunch pasta: the need for interesting new case law is greater than ever.

It is vital in times like these that the courts not only continue to function as close to normal as possible, but that they contribute to the wellbeing of the country as a whole by providing those confined to their homes with interesting reading material.  It is essential that in times of crisis, new decisions can be made available immediately, and in sufficient quantity, to those who are dependent on them.

That is why I am calling for the creation of a national emergency stockpile of interesting reserved judgments.

The national emergency stockpile would consist of a collection of up to 20 senior court decisions, ready for emergency deployment upon entry into alert level 3 or at the direction of the Chief Justice in consultation with the Attorney-General.  In reality, the stockpile would amount to a holding zone for any judgment issued by the courts where a judge identifies on the internal distribution cover sheet that it contains a point worthy of law reporting.  When a judge completes a judgment and identifies that it qualifies for the stockpile, instead of being immediately released to the parties it will be sequestered in the stockpile for a pre-determined period of time.  The length of the sequester will depend on the level of court.  High Court judgments will be held for one month.  For the Court of Appeal, which has generally longer judgment delivery times for important decisions, two months.  For the Supreme Court, who can and do take as long as they please to release judgments anyway, three months.

If the stockpile is not called upon during the period a judgment is sequestered then, at the end, of the period it is released to the parties in the normal way.  Most judgments will not qualify for the stockpile, so overall judgment delivery timeframes will not be unduly affected.  And all this process does is build a short sequester into a system that already exists, meaning the additional administrative cost is very small indeed.

The stockpile will take time to accumulate, and the precise number of judgments held may fluctuate over time.  But, once established, upon any significant national event where people are confined to their homes and require the comfort and intellectual distraction provided by new judgments, these 20 judgments (or a portion of them) can be released immediately.  By using the Civil Defence emergency alert system, the text of these judgments can even be sent to every cellphone in New Zealand.  How much better we would all feel if any emergency 9.00pm press conference was accompanied by the delivery of new judgments on s 27 of the Sentencing Act 2002, on intensity of judicial review, and on the status of abuse of process as a standalone tort in New Zealand.

Every crisis is an opportunity.  The time for this balm for a nation is now.  And as soon as I can get the Rules Committee to stop blocking my emails, I will be raising this at the highest levels.

Commentary about the Trusts Act 2019 except the word trust is replaced by tryst

IMG_2199

The Trusts Act 2019 enters into force tomorrow, 30 January 2021.  Make sure you know all about it with this collection of excerpts from reputable sources, altered only slightly by me.

First, Lawlink explains some of the background:

Many New Zealanders are involved with trysts in some way, whether as trystees or beneficiaries of family trysts or as volunteers with charitable trysts. However, despite the popularity of trysts, the law relating to trysts is often archaic and difficult to follow. Over the past decade, the Law Commission has led a review of the law of trysts intended to modernise the law and make it more accessible. This review ultimately resulted in the enactment of the Trysts Act 2019.

Some of that modernisation is timely because “[m]ost New Zealand Trysts are used to hold assets, and historically may not have always had a lot of involvement from Trystees“.

The Act will set out a range of mandatory and default duties.  MinterEllisonRuddWatts sets those out:

The mandatory duties are:

  1. a duty to know the terms of the Tryst;
  2. a duty to act in accordance with the terms of the Tryst;
  3. a duty to act honestly and in good faith;
  4. a duty to act for the benefit of beneficiaries; and
  5. a duty to exercise powers for a proper purpose.

The Act also imposes ten default duties that must be performed by trystees unless modified or excluded in the Tryst deed.

The default duties are:

  1. a duty of care;
  2. a duty to invest prudently;
  3. a duty not to exercise powers for the trystee’s own benefit;
  4. a duty to actively and regularly consider the exercise of the trystee’s powers;
  5. a duty not to bind or commit trystees to a future exercise or non-exercise of discretion;
  6. a duty to avoid conflict of interest between the trystee and the beneficiaries;
  7. a duty of impartiality to beneficiaries (however it should be noted that impartiality does not necessarily mean equality as between beneficiaries);
  8. a duty not to profit;
  9. a duty to act for no personal reward; and
  10. a duty to act unanimously

There are further record-keeping requirements.  Here is NZLaw:

Tryst documentation
Trystees will also have new duties relating to tryst documentation. This should bring a new level of rigour to tryst record-keeping, which can sometimes be lacking.

Each trystee will be obliged to keep copies of the tryst deed and any variations. They will have to either keep their own copies of ‘core tryst documents’ (which are defined in the Act) or to ensure that at least one of the other trystees holds all of the core tryst documents and will make them available on request. If a trystee is not confident in their fellow trystees’ ability with paperwork, they will need to keep these documents personally.

And Rhonda Powell on the New Zealand Law Society website:

Section 4 sets out the principles that apply to those powers or performing functions or duties under the Act (including courts, trystees, and lawyers). A tryst should be administered in a way that:

  • is consistent with its terms and objectives; and
  • avoids unnecessary cost and complexity.

Another option opened up by the Act is the ability to appoint a ‘special tryst adviser’ to advise the trystee. A special tryst adviser will not have the power of a trystee and the trystee will not be bound to follow their advice.

The new rules on exercise of trystee powers by others (ss 67-73) enable a trystee to go further and delegate certain powers or functions to another person.

The other significant change is about provision of information.  Here is Rhonda Powell again:

The Trysts Act creates a presumption that a trystee must make ‘basic tryst information’ available to every beneficiary and ‘tryst information’ available to beneficiaries who request it. However, before providing the information, trystees must consider a range of factors and if the trystee reasonably considers that the information should not be disclosed, then it may withhold the information.

‘Basic tryst information’ includes the fact that a person is a beneficiary, the name and contact details of a trystee, details about any change to the trysteeship, and the fact that a beneficiary may request a copy of the terms of the tryst or ‘tryst information’.

‘Tryst information’ is information that is reasonably necessary for the beneficiary to have to enable the tryst to be enforced.

So what does this mean for you?  Well the Public Trust advises:

If you’re a tryst settlor or trystee you need to start administering your tryst in line with the new law from 30 January 2021.

We recommend thinking about whether:

  • you’re willing and able to undertake the increased obligations
  • you’re comfortable with the increased information provided to beneficiaries
  • the reasons for setting up the tryst are still relevant
  • the tryst will offer the same protection
  • the tryst will still be cost-effective with the extra tryst compliance requirements.

Constitutional meta-principles in New Zealand

The need for meta-principle

In Alefaio v District Court at Waitakere, Palmer J wrote “It is heartening when counsel make arguments based on constitutional doctrine”.[1] Assuming for the sake of argument this is correct,[2] the ability to make such arguments requires a person to be able to articulate the constitutional doctrine upon which they rely.

Lists of constitutional principles tend to peter out around number four or five. People might venture Parliamentary sovereignty, representative democracy, the rule of law, and recognition of the Treaty of Waitangi.  After that the suggestions amount to “be a tidy Kiwi” or “always blow on the pie”.  We treat our constitution like we treat our national anthem: we’re not great on the Māori parts and we only know the first two verses.

This does not indicate the absence of a constitution. We have one.  Rather, what it indicates is a failure of every constitutional taxonomy to date.  I can recall those television advertisements for ACC where the lady falls through the glass coffee table, and they last aired years ago.  But if I can do that, and can’t rattle off Aotearoa New Zealand’s constitutional principles, doesn’t that tend to suggest there’s an issue with the description and articulation of the principles themselves?[3]

Structural solutions will take time. Law faculties cannot be merged with marketing departments overnight.  But the necessary rebranding exercise will face the same difficulty in identifying what counts as a constitutional principle unless there is a way of knowing a constitutional principle when we see one.  Definitions to date have tended to be descriptive: constitutional principles are ‘the rules of the game’, at the level of fundamental principle.  But even that is open to debate: scholars favour their own principles and their own fundaments.  Many even cheat by claiming principles like the rule of law which is a sort of Russian nesting doll of constitutional principles.

The way to avoid this debate is to focus instead on constitutional meta-principles – the principles that inform the principles. They capture the values that underpin the principles of the constitution of Aotearoa New Zealand.  Attaining certainty about meta-principle will in turn assist us in the debate about what is (or is not) a first-order principle.

In this piece, I argue Aotearoa New Zealand’s constitutional meta-principles are:

    • “That sounds like a lot of effort.”
    • “But we could if we wanted to.”
    • “Don’t mention the C-word.”

“That sounds like a lot of effort.”

The first constitutional meta-principle of Aotearoa New Zealand is “that sounds like a lot of effort”. Constitutions are hard work, and we do our best to shirk it wherever possible.  Our constitutional principles reflect this.

That begins with the idea of not getting around to writing down everything in one place. Keith Jackson and John Harre once wrote that New Zealand can “lay claim to possession of one of the shortest and most ridiculous written constitutions of any modern state”.[4]  It is not so much that things are not written down (though there is much that isn’t).  Rather, it is the fact that so little is properly labelled.  Where other countries have constitutional documents we have a constitutional conspiracy; you have to join a lot of dots before you realise it goes all the way to the top.

Jackson and Harre made their observations in 1969. The observant will note that since they wrote those words we gained the Constitution Act 1986.  An Act that purports to “bring together into one enactment certain provisions of constitutional significance” but omits the Treaty of Waitangi.  An Act that simply “continues” Parliamentary sovereignty and in so doing leaving the idea undefined.[5]  An Act that simply points to other Acts like the Electoral Act 1993 and says “whatever that one says”.  An Act that predates the New Zealand Bill of Rights Act 1990, the Supreme Court of New Zealand, and any other number of matters that arguably impact the constitution of Aotearoa New Zealand.  Far from indicating a willingness for constitutional spadework, the Constitution Act 1986 confirms one of the defining characteristics of our constitution is to scrape by with the bare minimum of effort.

And it is not just the writing down that we find exhausting. It is the practice as well.  Aotearoa New Zealand operates a unicameral Parliament because nobody could be bothered going on with a second chamber past the 1950s.

We pay lip service to the separation of powers but operate a Westminster system of government that merges the executive and legislature in a sort of one-circle Venn diagram. As David Baragwanath once observed:[6]

No one really believes that Montesquieu’s notion of the separation of powers applies to Westminster type systems of Government.  An executive which by Order in Council promulgates some 1648 pages of legislation a year and which exercises total control over the legislature is about as distinct from it as gin from tonic after they have been swallowed.

And, for most of the modern period of government in this country, the one branch of government we managed to keep separate we could not even bring ourselves to administer in our own territory. The apex of the judicial branch remained in London, as if in the process of the colonial move the English left behind some boxes, with the result we spent the next 160 years without a tin-opener.  Robert Stout thought this indicated a lack of sense: “The English,” he wrote, “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 a proof of the statement”.[7]

Proof, too, I submit, of an abiding laziness when it comes to matters constitutional. An indigenous apex court sounds like a lot of effort.  That is why it only took a mere 100 years after Stout wrote those words for the Supreme Court of New Zealand to finally get out of bed, having hit the constitutional snooze button 5,840,000 times.[8]  Not so much a constitutional moment whose time had come, but a constitutional bus the country chased down the street.

And, lastly, the continued avoidance of true recognition of, and accountability to, Māori within New Zealand’s constitutional arrangements. We have had literally decades where it has been impossible to plead ignorance.  And yet we have not made changes at the constitutional level.  True, it is also likely to be a product of pathologies more serious than laziness, but it is another mark in the ledger for my thesis.

As a result, I say that “that sounds like a lot of effort” is a constitutional meta-principle. One cannot understand the constitution of Aotearoa New Zealand without understanding that it is made and administered by a society not willing to “do the mahi”.

“But we could if we wanted to.”

The second constitutional meta-principle of Aotearoa New Zealand is “but we could if we wanted to”. It underpins our constitutional obsession with theoretical powers that are never exercised.  It acts both as a touchstone for Parliamentary sovereignty and a psychological comfort blanket for those who fear that sovereignty.  It informs how the constitution of Aotearoa New Zealand is in large part a truce of institutions maintained by the belief of each that they would be the victor should constitutional push come to critical shove.

In Aotearoa New Zealand, Parliament is sovereign.[9] Parliament makes the law and the courts apply it – “whether the Courts think it is sensible or not”.[10]  Parliament’s law-making power extends to making bad law, unfair law, and unjust law.  That includes the power to enact legislation ordering the death of every blue-eyed baby, or red-haired child.[11]  “We won’t”, says Parliament, “but we could if we wanted to.”

At the same time, courts’ commitment to applying legislation wavers at the same extremes. “Some common law rights presumably lie so deep that even Parliament could not override them”, said Cooke J.[12]  “We won’t go rogue this time,” say the Courts, “but we could if we wanted to.”

The same type of uneasy relationship can be found in other corners of our constitution. Everyone believes the Governor-General acts on advice.  As Sir Michael Hardie-Boys described it: “I do as I am advised, which is a constitutional euphemism for doing as I am told”.[13]  But even in doing that the Governor-General retains the dream that maybe, just maybe, they could act differently.  In the same speech, Sir Michael said:[14]

I no longer exercise an independent judgement – although I enjoy the thought that like the razor strap my father kept in the hall cupboard, I could if I really had to.

In other words, “he could if he wanted to”.

I want to be clear. The “but we could if we wanted to” meta-principle is not to be mistaken for “go on, if you think you’re hard enough”.  It is not a meta-principle founded on aggression, where constitutional balance is maintained through fear of what another constitutional actor might do if one oversteps.  Rather, it is founded on insecurity and self-delusion.  Institutions reassure themselves that, despite their comparative impotence, if something was truly important enough then they could do something about it.  The meta-principle still maintains balance in its own way by permitting institutions to rationalise as a strength their compliance with expectations even in difficult situations.  And in doing so, this meta-principle informs a number of important constitutional principles for Aotearoa New Zealand.

“Don’t mention the C-word.”

The third constitutional meta-principle of Aotearoa New Zealand is “don’t mention the C-word”. Whatever you do, don’t acknowledge that something is constitutional.  It can be legal, political, or societal.  It just can’t be called constitutional.

At first blush, this might be thought of as a contradiction in terms. Constitutional principles can hardly be informed by a meta-principle that demands a lack of constitutional-ness.  But the meta-principle is concerned with labels, not substance.  Constitutional principles will, by definition, concern the constitution; they just can’t say they do.  The only thing worse than having a constitution is being seen to discuss it.

Everything constitutional, every constitutional principle, is divvied up into neat taxonomical boxes in order to avoid the spectre of being labelled as constitutional. So, the Cabinet Manual is a guide to executive government, not a codification of some core constitutional conventions.  The rule of law is a legal concept guarded by judges.  Our electoral system is a political concept.  Our relationship with Realm countries is a mystery known only to MFAT and Dame Alison Quentin-Baxter.

The one exception is the Constitution Act 1986, the material shortcomings of which are addressed above. That document alone is willing to state out loud that it is about the constitution.  An exception that proves the rule, to be sure.  But what you have to remember is that it was the product of someone who studied in the United States and subsequently admitted it was “an experience that changed my life so considerably I have not yet recovered from it”.[15]  And beyond that, even the finest “constitutional” cases disclaim their constitutional nature.  For example, in Fitzgerald v Muldoon Wild CJ hurried to explain that the constitutional law case only really meant applying an Act of Parliament to the facts at hand.[16]

Meta-principles in summary

Understanding meta-principle will help us to better articulate what is and is not properly constitutional, by knowing what underpins them. I do not propose to have listed the constitutional meta-principles exhaustively. Further meta-principles can and should be derived, preferably aided by substantial funding from the Borrin Foundation.

JC Beaglehole once said the constitution should not be “some silk-wrapped mystery, laid in an Ark of the Covenant round which alone the sleepless priests of the Crown Law Office tread with superstitious awe”.[17] And until we identify meta-principle, the sleepless priests will reign.

_________________________________________________

[1]     Alefaio v District Court at Waitakere [2020] NZHC 3118 at [8].

[2]     It is not.  It is deeply irritating.

[3]     Readers in search of serious people who will likely disagree might look to Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014).   Bruce Harris New Zealand Constitution: An Analysis in Terms of Principles (Thomson Reuters, Wellington, 2018); Sir Kenneth Keith “On the Constitution of New Zealand: an Introduction to the Foundations of the Current Form of Government” in Cabinet Manual (Government Printer, Wellington, 2017); or “Chapter 4: Fundamental constitutional principles and values of New Zealand law” in Legislation Guidelines: 2018 edition (Legislation Design and Advisory Committee, Wellington, 2018).  I disagree with all of these people and you should listen to me instead.

[4]     Keith Jackson and John Harre New Zealand (1969) at 73.

[5]     Constitution Act 1986, s 15.

[6]     WD Baragwanath “FW Guest Memorial Lecture: The Dynamics of the Common Law” (1987) 6 Otago Law Review 355 at 357.  Footnotes omitted.

[7]     Robert Stout “Appellate Tribunals for the Colonies” (1904) 2 CL Rev 3 at 4.

[8]     Assuming a standard iPhone nine minute snooze period, and excluding leap years.

[9]     See for example Tannadyce v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [3]; Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC) at 595.

[10]    Christchurch Readymix Concrete v Canterbury Regional Council (2011)16 ELRNZ 748 at [14].

[11]    AV Dicey’s childhood bully had blue eyes and red hair.  These two examples have stuck with constitutional scholars ever since.

[12]    Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398.

[13]    Michael Hardie-Boys “Reflections on the last 50 years of the law and law school” (2000) 31 VUWLR 37 at (internal pagination 2).

[14]    Michael Hardie-Boys “Reflections on the last 50 years of the law and law school” (2000) 31 VUWLR 37 at (internal pagination 2).

[15]    Geoffrey Palmer “The provision of legal services to government” (2000) 31 VUWLR 65 at (internal pagination 2).

[16]    Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC) at 622.

[17]    JC Beaglehole “The Old Empire and the New” in New Zealand and the Statute of Westminster: Five Lectures (Victoria University College, Wellington, 1944) at 50.

Martial law “unable to be accessed by most New Zealanders”

New Zealanders’ ability to access military justice is under threat, according to a New Zealand Law Foundation backed study released today.  Decades of under-funding and spiralling costs of litigation mean that New Zealand risks finding itself unprepared should it have to declare martial law.

The study found that a credible and effective system of military justice depends on sufficient funding, as well as legislation permitting high degrees of discretion and caprice.  But resourcing for the necessary legal infrastructure has not kept pace with developments in other areas of law, and the current laws on the books may lead at best to only partial repression of the civil legal system.

“Our research has shown that the cost of a summary trial and the attendant execution by firing squad is now unaffordable for anyone earning less than $125,000 per year,” said lead researcher Courtney Marshall.

Meanwhile, figures show the simplest of proceedings is likely to take over fifteen months to reach a political show trial, even under active case management procedures.  Ms Marshall said this should be a warning sign for anyone expecting martial law to operate seamlessly immediately upon its declaration.

“Things going well, we might be able to suspend habeas corpus for about a fortnight but to sustain that beyond that time will likely come at the cost of other aspects of our response, such as abolition of the right to silence.”

Screen Shot 2020-12-20 at 3.32.59 PM

The Director of the University of Otago Legal Issues Centre said the findings were unsurprising.

“Events such as this year’s Alert Level 4 lockdown have shown us the tremendous capacity of the civil service to adapt to unprecedented circumstances and produce a comprehensive emergency response at short notice.  However, this study shows that the potential for our armed forces to achieve a similar result has been severely degraded by years of peacekeeping missions, disaster relief, and minding blue cod in the Southern Ocean.”

The study’s full list of recommendations is available online and includes:

  • Amendments to the Code of Military Justice to ensure it meets standards of international best practice.
  • Increasing the rates for military legal aid lawyers, which have not been increased since 1991.
  • A public information campaign to increase awareness of the legal rights martial law will not afford people.
  • Designating gathering points for members of the civilian judiciary to enable them to be rounded up more efficiently.

A Ministry of Justice spokesperson said that many of the questions raised by the study would be best addressed to the military sub-junta that will operate in place of the Rules Committee upon declaration of martial law.  Consistent with her role under martial law, the Chief Justice was unavailable for comment.

A public law fortune teller

Eos55veUwAEArZH

It is a truth universally acknowledged that a godforsaken glorified meme account must have “merch”.  So, if you cared to make a public law fortune teller like the one in the picture, then you could download it by clicking this link.  I used the template from this site to create it for a Secret Santa present where we weren’t allowed to spend money.  It’s a Powerpoint file but it prints nicely on A4.

Article titles about Rylands v Fletcher arranged so they sound like an increasingly tired film franchise

Original

The original.  A surprise sleeper hit in the summer of 1868.  Box office returns exceeded expectations pleasing studio execs who greenlighted a sequel.  

 

The merits of Rylands v Fletcher

The sequel written by the same screenwriters as the original that shamelessly cribbed plotlines from Dickens and focused on the relationship between the main characters.  Did good numbers on DVD sales. 

 

The changing fortunes of Rylands v Fletcher

A second sequel that focuses on the lives of Rylands and Fletcher after the decision of the House of Lords.  Notable for its extended training montage as Rylands trains in a Venetian assassin academy having sworn revenge on Lord Cairns.  Historians of the franchise mark this as the point at which the wheels started to fall off. 

 

Whither Rylands v Fletcher

Tells the origin story of Rylands v Fletcher.  Stars the original actors but uses de-ageing software to allow them to portray themselves as young men.  The plot details a young Fletcher rebelling against a family history of mining, and a young Rylands overcoming a childhood fear of reservoirs.  

 

Rylands v Fletcher in Oregon

The road trip movie that nobody asked for.  The script was originally “Rylands v Fletcher in the French Riviera” before a series of studio tax breaks shifted filming to the Pacific North West.  Released directly to streaming services.  

 

Requiem for Rylands v Fletcher

Directed by Ingmar Bergman, this dark meditative piece is well-remembered for the audio motif of dripping water.  Filmed in Swedish, with English subtitles.  

 

Liability without fault - Rylands v Fletcher revitalised

An all-woman remake of the original Rylands v Fletcher.  This film earned Meryl Streep her second nomination for an Academy Award.  

 

Abnormally dangerous

The franchise reimagined for the modern era as a Borat-style mockumentary.  When Rylands and Fletcher embark on a tour of American reservoirs as part of a travel show, a series of comic misunderstandings seems them pursued through the mid-West by Hells Angels.  

 

Rylands v Fletcher - fire in polystyrene factory

Intended as a dark comedy, “Rylands v Fletcher – fire in polystyrene factory” was widely panned by critics as “in unbelievably poor taste” and “deeply offensive to victims of polystyrene factory fires and the families of victims of polystyrene factory fires”.  Banned in the European Union.  

 

Rylands lives

Set in a world where a super-virus has turned John Rylands into a zombie overlord.  Thomas Fletcher must lead a rag-tag bunch of survivors through a series of tunnels in his mine into the abandoned reservoir where Rylands holds court in order to assassinate him and save the human race.  

With apologies to AP Herbert – Haddock v Empire Television Holdings (a firm)

Haddock

v

Empire Television Holdings (a firm)

 

This application for an urgent injunction was heard today before Mr Justice Swallow.

Stephen Swine QC (for Haddock): MayitpleasetheCourt, the applicant seeks entry into a televised debate between the leaders of the two major political parties.  The respondent proposes to host the debate on its television network.  It refuses to let Mr Haddock, gentleman and some-time political candidate, join the candidates on stage.  There is precedent for the Court to order his inclusion in the Dunne and Anderton and Craig matters.

His Honour: But not recently.

Swine QC: It is true the Court’s door has been resolutely shut to the prospect of late.  But the point I would endeavour to make to your Honour is that it has not always been so.  For example, without the Court’s involvement the country would have seen far less of Mr Craig.

His Honour: A mistake her Majesty’s judges have continued to make.

Swine QC: Just so, your Honour.  Though, if your Honour will permit me, the point for which I was reaching is that Mr Haddock is as entitled as anyone to share his political views as anyone in this country.  To exclude him from the debate is tantamount to saying that his beliefs are less important than another person’s merely because she happens to lead a political party.

His Honour: Are you saying Mr Haddock does not lead a political party?

Swine QC: In point of fact, no, your Honour.  And nor is he standing for election.  But he is a concerned citizen.

His Honour: Concerned at what, precisely?

Swine QC: Concerned generally, your Honour.  Mr Haddock’s concerns are both deep and wide-ranging.  It is precisely those he wishes to share with the nation in the debate.

His Honour: And the debate is between the leaders of the two main political parties?

Swine QC: The debate is between persons with differing political opinions to inform voters at large.  There is no reason why that should not be three persons instead of two.  And my learned friend has not provided any.

His Honour: I think you draw rather a long bow, Mr Swine.  I shall hear from your friend. 

Sir Ambrose Stark-Raving QC (for Empire): This Court’s previous decisions permitting interlopers in planned debates share the common feature of illogicality in criteria for inclusion.  Where a television producer has not suffered a brain explosion before setting criteria, a debate may proceed free from the intrusion of both the Court and the Haddocks of this world.

 

His Honour took brief time for consideration and delivered the following judgment ex tempore:

It is the right of every citizen in this country to hold and espouse whatever political beliefs they so choose.  The current make-up of the House is proof positive that a lack of commonsense is no impediment to a political career.  And views are acquired not only from one’s fellow passengers on the Island Bay Bus but through seeing and hearing debates of issues on television.  If elections are the lifeblood of our democracy then television debates are its platelets, ensuring that clots make the occasional appearance.

To this Court comes Mr Albert Haddock, seeking to be included in a television debate convened by Empire Television Holdings.  The debate is between the current Prime Minister and the leader of her Majesty’s loyal opposition.  Mr Haddock is not standing in the general election.  Nevertheless he wishes to be included, and to share his political views.  I am informed from the bar that his views are neither left nor right, but breathtaking. 

The focus must be on the criteria of inclusion and exclusion.  Sir Ambrose for Empire submits that this Court has historically interfered with participation in debates if the criteria for inclusion are illogical.  Empire propose to include the leaders of the two main political parties in the country.  They are the people that may be the next Prime Minister.  Mr Haddock complains of illogic.  A debate is about the airing and exchange of views and what is best for the country.  It is a narrow mind that thinks only two persons will give a full range of views.  And Mr Haddock goes further.  It is a near certainty that the leader of one party will say that what is best for the country is the particular suite of policies belonging to their party.  As will the other leader.  The debate become an opportunity only to repeat things voters are already likely to know from other sources of information.  Restricting participation to two broken records is hardly likely to inform the populace. 

I am driven to agree. 

Now, it is true that Mr Haddock is not the leader of a political party.  And it is true that he is not running for political office of any kind.  What place could he have in a debate between persons who plausibly might be the next Prime Minister?  Empire would deny him entry on that basis. 

But that is to overlook present polling.  We are mere days away from the date of the election.  Many, many voters have already cast their ballots.  When regard is had to the poll numbers (which by now must be very accurate indeed) it might be said categorically that Mr Haddock has as much chance of being the next Prime Minister as does the present leader of the opposition.  He cannot be distinguished from one of the present intended-participants. 

While courts across the country deny reality and spurn fact every day of the week, they may do so only in accordance with well-established criteria such as an Act of Parliament, a rule of common law, or three lunchtime sherries at the Northern Club.  I am satisfied none of those apply here.  There is nothing to compel departure from the plain fact that Mr Haddock has as much right to be in the debate as the leader of the opposition. 

Given that, to exclude Mr Haddock would be illogical in the extreme. 

What, then, remains of Empire’s argument?  So far as I can see: nothing. 

At this point Mr Swine QC rose and objected so strenuously that he suffered a hernia requiring immediate hospitalisation.  His junior, Mr Rupert Boddington then continued the objection, to the effect that if Mr Haddock were to be included on the basis the Court had indicated there would be no grounds to deny participation to any other person wishing to be included in the debate. 

The Court continued:

Mr Boddington has raised a concern that the country lacks sufficient podiums to accommodate the flood of candidates who would take part should this Court continue in the direction it is heading.  

That may be so, but as courts wiser than this one have said: “Fiat justitia ruat caelum. Justice must take its normal course, even in abnormal times.”

There will be a mandatory injunction requiring the inclusion of Mr Haddock.

New Zealand Law’s Tile Guide

Flooring has long played an important role in legal analysis.  After all, it is difficult to step through a piece of legislation if you don’t have anything to step on.  Until now, though, New Zealand judges and practitioners have lacked a centralised means of identifying and cataloguing flooring tiles in courthouses around the country.  The result is anarchy, frankly.

That ends today, with the advent of the New Zealand Law’s Tile Guide.  The Guide, which is not yet comprehensive, identifies tiles by their nature and quality and provides individual photographic examples.  Practitioners wishing to identify photos of flooring in a range of New Zealand courts can now refer to this Guide.  The author has been assisted by an elite cadre of volunteers from across the country.  In time, it is hoped it can be  expanded to cover all New Zealand courts, apart from Blenheim which apparently doesn’t have any.  Further contributions are welcomed via Twitter.

 

SupremeCourt
The Supreme Court – cold, polished, calming

 

AucklandHC
Auckland High Court – reliable, echoey, seen it all before

 

Wellington
Wellington High Court – pale, clammy, marble on meth

 

Kaikohe
Kaikohe District Court – carpet tiles, welcoming, socks and sandals

 

ADC
Auckland District Court – workaday, faux slate, oh-so-grey

 

Manukau
Manukau District Court – a job to do, solid, does what it says on the tin

 

Hamilton
Hamilton District Court – varied palette, high sheen, Gloria Jean’s

 

WellingtonDC
Wellington District Court – beachy, tectonic, someday my prince will come

 

Invercargill
Invercargill District Court – flinty, frost-hardy, southern