What is a guideline judgment? By the President of the Court of Appeal

The question I am asked most often as President of the Court of Appeal is what happened to the tall guy with the big glasses and a penchant for a chunky pinstripe? But the question I am asked second most often is what is a guideline judgment?

Guideline judgments are the means by which this Court tries to give guidance to courts below, especially in the area of criminal sentencing. A guideline judgment has to be followed by the courts below unlike our ordinary judgments which, well, I guess our ordinary judgments have to be followed too. But a guideline judgment can be relevant in cases other than the appeal it is purporting to decide. Whereas we wouldn’t expect courts below to think that any of our other judgments might be relev- hmmm.

Actually I suppose it’s not about the fact of needing to follow it but more to do with the degree a court below needs to do so. We really really mean it when we write a guideline judgment. You can see that by the way we urge courts to apply them flexibly and we encourage departure and no you’re right that’s the opposite of needing to follow them. Now that I come to think about it we only seem to encourage departure from guideline judgments. I’ve never thought about it that way.

What about this? Guideline judgments ensure consistency among first instance sentencing decisions by identifying levels of sentencing often with reference to aggravating factors. Consistency is a tricky thing in law and you need to treat like cases alike. That’s why guideline judgments eliminate the need to look at like cases and instead look at one judgment that only deals with matters in the abstract.

Hmmm…

Well, guideline judgments have bands.

Except when they don’t, like in Hessell.

And except when non-guideline judgments have bands, like Shramka.

They have five judges.

Okay, they have five judges if you don’t include Fatu or Wallace.

The Court of Appeal does them.

Except when the Supreme Court did one in Hessell.

Look, sentencing is quintessentially a judicial function and guideline judgments are a vital part of the- no, I forgot about the Sentencing Act.

Fine, we shout obiter dicta through a megaphone then allow any appeal where it hasn’t been treated like ratio.

And they all get in the NZLRs.

I think.

Yes, they all get in the NZLRs.

I hope that cleared things up.

The Lower Cases (May 2022)

Not relevant, but still admissible.

In a month of Donoghue v Stevenson fever (and the even-worse snail trutherism) here are some things that caught my eye. No Depp v Heard. No Wagatha Christie. No leading Supreme Court decisions. Just a few bits and pieces.

 

Another victory for Trans-Tasman Resources

You may recall Trans-Tasman Resources Ltd v Just About Everyone Else [2021] NZSC 127, [2021] 1 NZLR 801, a Supreme Court decision in a case that started off about seabed mining but ended up being about high constitutional principle. You may also recall Trans-Tasman Resources from this Media Council ruling, where the Council pinged the Taranaki Daily News for uncritically repeating Trans-Tasman’s claim that its defeats in the High Court and Court of Appeal were actually victories. In much the same vein, on 19 May 2022, the Supreme Court decided the latest victory for Trans-Tasman; ordering it to pay $155,000 in costs. 

 

Holding up the holding up of traffic

As a semi-occasional visitor to Wellington who knows that no trip is complete without sitting in traffic on Cobham Drive, it seems extremely unlikely to think that any change to current arrangements could make things worse. Still, Wellington International Airport Ltd (WIAL) had taken up the cudgels against planned works for an “at-grade” pedestrian crossing on Cobham Drive. WIAL applied for interim orders under the Judicial Review Procedure Act 2016; a move that didn’t stop Grice J referring to interim injunctions. Justice Grice rejected the claim, in a decision with so many grounds it was approaching the kitchen sink rather than on the way to the Basin. The word “standing” didn’t appear anywhere in the 235 paragraph decision, despite Wellington International Airport Ltd having about the same standing as any resident of Miramar Peninsula to complain about traffic. It’s not like the pedestrian crossing was going to be installed across the bloody runway. WIAL later discontinued its substantive claim but not before proving my suspicion that we’re all just Weekend At Bernie’s-ing the doctrine of standing. 

 

A judgment for people who listen to their podcasts on 1.5x speed

Not on NZLII yet, but on Westlaw NZ, Smartpay Ltd v Kumar [2022] NZHC 997 has Downs J on top form, rocketing through a commercial dispute with an economy of language and maximum of force that I genuinely think is beautiful to read. It includes the razor-sharp line at [49]: “This argument is ingenious. And wrong.” [[chef’s kiss emoji]]

 

Dog line-up!

Doglineup

Seven of these dogs are good boys or girls. The eighth was suspected of an attack. But the visual identification procedure was found wanting, and so the charge was dismissed. I’m a cat person, so it’s not my place to criticise, but if dog is man’s best friend then technically that’s recognition evidence, and so there’d be no need for a visual identification procedure. 

 

Conduct that I’d hit the roof about if some litigant tried this shit: May edition

This story from Stuff about Business NZ:

The BusinessNZ list, which put New Zealand alongside Afghanistan, Nigeria, and China, had the title “‘Worst cases’ breaches of international labour treaties”.

But the original ILO title for the list was “Preliminary list of cases as submitted by the social partners Committee on the Application of Standards”.

BusinessNZ, employment relations policy manager Paul Mackay,​ admitted BusinessNZ changed the name of the list.

But he said it was not a mischaracterisation to say New Zealand was in breach of international labour law, when the ILO had made no such decision.

“It doesn’t have to be a past tense breach. An intention to breach is just as bad,” Mackay​ said.

Call the pre-cogs!

 

Strong benches

Strong bench

The Court of Appeal decided Watson v R [2022] NZCA 204 confirming that if the executive chooses to exercise the prerogative of mercy to send a matter back to the courts then the courts will do what they like with it regardless of the grounds on which it was referred. CS Lewis once observed that mercy detached from justice grows unmerciful, but he probably didn’t expect the New Zealand appellate courts to take that as encouragement to put another judicial claw into what the Court recognised is “distinctively an executive power” (at [16]). 

All of this is by-the-by though, because the judgment is notable for a more important reason: Kós P’s use of the term “strong panel” to describe a line-up of the House of Lords in R v Chard [1984] 1 AC 279 (HL) (Watson at [38]). A strong bench or a strong panel exists only where three conditions are satisfied: (1) the judgment supports your argument; (2) even though it was decided more than twenty-five years ago you recognise at least one of the judges in the line-up; and (3) you will not be taking questions about it at this time. It’s the same reason why, despite usually omitting judges’ names in my submissions, I strive to mention Tipping J or Sir Thomas Bingham MR if they wrote a decision on which I’m relying. 

Of course, if strong panels really did exist they would imply the existence of weak benches: line-ups of fumblers whose very presence would somehow mean the decision didn’t need to be followed. We may think that (indeed, we can probably name them), but decorum prevents us from saying it. 

 

Costermongers

The new textbook The Law of Costs in New Zealand was released this month. Costing just under 0.1 days costs at category 1, this new text promises guidance on an area of law that is predicated on being entirely at the discretion of judges. The book arrives cannily just before the Rules Committee promises to re-make large swathes of the costs regime, which guarantees a second edition. Doubling author royalties from LexisNexis will mean the authors will be able to splash out for an entire extra shot in their flat whites.

 

You don’t need a law degree for this: May edition

“Shooting somebody in custody in the absence of a justification is inconsistent with the minimum standards of detention arising from the duty to treat detainees with humanity, and with respect for their inherent dignity.” – Cooke J in Pere v Attorney-General [2022] NZHC 1069 at [42].

 

Other quotes

“Another under-explored question is the link between the purposes of sentencing and reality.” – Professor Kris Gledhill “Judges and Sentencing” in John Burrows and Jeremy Finn (eds) Challenge and Change – Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 326. Packed full  of entertainingly subversive sentencing arguments, hewing closely to the wording of the Sentencing Act. The chapter is a preview of every landmark sentencing case that will be heard over the next decade. All arguments waiting for their time to come. (Your author forgot he had ordered this book to be delivered at his much more talented wife’s chambers and has recently had to explain the purchase…)

“The defendant, having tried one ploy to evade paying what he owes, is now simply wriggling to find another.” – Judge Greig quoted by Palmer J in ICL Construction (2016) Ltd v Ian Roebuck Crane Hire Ltd [2022] NZHC 1047 at [2].

“In Mannix Cooke J observed that arguably there might be more ground for relaxing the cognate rule that a corporation has no right to file documents except by a solicitor. It seems to me that the case for relaxation of that restriction for access to justice reasons is even stronger today than it was in 1984 when Cooke J made that observation. But that issue should be determined in a suitable case following full argument.” – Goddard J indulging in some Mannix street preaching in Dokad Trustees Ltd v Auckland Council [2022] NZCA 177 at [20]. Footnote omitted. Incidentally, someone should ask Goddard J if he thinks Cooke, Somers and McMullin JJ was a “strong bench”.

In striking out Ms Sixtus’ claim in Sixtus v Ardern [2022] NZHC 1161, Cooke J recorded the claim as including complaints about “The Marsden Point Refinery … The Government’s Three Waters Proposal … Certain allegations made by Judith Collins … The establishment of two Mormon temples which was endangering the safety of the protestant religion … The disarming of protestants of their firearms [and] An allegation concerning Lexis Nexis.” No, it didn’t say what the LexisNexis thing was. I know. I’m disappointed too.

 

And, finally, if this was meant to cover serious legal developments at all, I’d be directing you to:

P v District Court at Manukau [2022] NZHC 1102 where a complainant in a criminal case successfully applied for judicial review of a court’s decision to stay a criminal prosecution. 

Jones v Minister of Justice [2022] NZHC 1177 where a prospective defendant successfully applied for judicial review of the Minister’s decision to extradition decision based on a failure to consider whether Mr Jones might be tried in New Zealand, with the overseas complainant giving evidence by AVL. 

 

Bonus son-of-a-judge quiz

Below is a quiz I wrote a while back when “son of a judge” was big news. I didn’t publish it at the time because it felt too much like having a go. But I like the questions, and so now that sufficient time has passed, you could have a go if you like.

1. Which son of a judge had the title of his father’s book addressed to him?

2. Which son of a judge was Solicitor-General?

3. Which son of a judge was a Governor-General?

4. Which son of a judge was a President of the Law Commission?

5. Which son of a judge is a judge whose father was a modern Supreme Court judge?

6. Which son of a judge was a judge whose father was an old Supreme Court judge?

7. Which son of a judge was the first New Zealand-born old Supreme Court judge?

8. Which son of a judge is a judge whose father was Chief Justice of New Zealand?

9. Which son of judge was a judge whose father was Chief Justice of New Zealand?

10. Which son of a judge is a judge whose father was also the son of a judge?

Answers only if I can manage to write another one of these next month.

 

All Grounded Kiwis judgment commentary in one place

By now you will be aware of Mallon J’s decision which offers:

  • An unusual approach to evidential requirements and thresholds in s 5 NZBORA demonstrable justification analysis.
  • Typically clear-minded and piercing analysis that draws unsurprising conclusions from orthodox law.

The important things to focus on are the:

  • Parts where the Court found the MIQ system was lawful and a demonstrably justified limitation on rights.
  • Parts where the Court found the MIQ system was not a demonstrably justified limitation on rights.

Yes, it is true that there are also:

  • Parts where the Court found the MIQ system was not a demonstrably justified limitation on rights.
  • Parts where the Court found the MIQ system was lawful and a demonstrably justified limitation on rights.

But that has to be seen in light of the fact that the measures:

  • Were necessary to sustain a zero-Covid approach that materially contributed to the health and wellbeing of New Zealanders, and that almost all of them have been upheld as lawful and proportionate.
  • Operated to cause anguish for New Zealand citizens and residents wishing to exercise rights guaranteed by law, and the Court took care to centre the human stories of those adversely affected.

Even though the judgment is:

  • Quite long.
  • Not short.

That is no excuse for people who:

  • Are badly misinterpreting this decision as a panning of the entire MIQ scheme by the Court.
  • Seek to obscure the fact that a central aspect of MIQ has been found to be an unjustified limitation on rights.

But no matter what sincerely held views you have about this, it is clear that the judgment is:

  • Vindication of what I have been saying about MIQ all along.
  • Vindication of what I have been saying about MIQ all along.

It now behoves us all to pull together as a commentariat to:

  • Keep pretending we have actually read the judgment.
  • Keep pretending we have actually read the judgment.

New approach from judiciary to reduce large number of outstanding jury trials

In a joint statement the Chief Justice and the Chief District Court Judge today outlined a new approach to reducing the large number of outstanding trials created as a result of COVID-19. It comes as courts attempt to reduce high case numbers, with jury trials currently being scheduled in mid-late 2023 in some centres. The full statement is below:

“Jury trials are now proceeding in courts across the country where it is safe to do so. Judges are working closely with the Ministry of Justice to ensure all court participants are kept safe, including through the provision of KN95 masks, greater distancing in courtrooms, daily rapid antigen testing, and increased ventilation of courtrooms where the court estate permits.”

“Nevertheless, the court system is continuing to feel the effects of periods of lockdown and alert level red settings where many hearings were not able to go ahead. The result is that there are still a large number of cases – particularly jury trials – that need to be heard. This is exacerbated by new cases continuing to enter the system at the same rate as usual.”

“Other jurisdictions have altered their judicial approaches in light of the resource implications of COVID-19. For example, the Victorian Court of Appeal stated in Worboyes v R [2021] VSCA 169 at [39]:

38 Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.

39 For these reasons, we consider that — all other things being equal —a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.

“This is a salutary example of how, even in exceptional times, ordinary sentencing principles can be applied to new situations to guide principled responses for the benefit of all. We have been influenced by this thinking, but have chosen a different sentencing principle to underpin our response: premeditation.”

“It has been a strength of the New Zealand judicial system’s response to the COVID-19 pandemic that it has involved goodwill and effort from a wide range of participants: lawyers, judges, and the Ministry of Justice. However, to date we have neglected to ask those entering the system to play their part as well.”

“Therefore, we are asking today for all persons considering committing a crime to defer doing so until at least 2024. That will ensure that when their case enters the court system it can be dealt with promptly, and will allow us to use the intervening time period to deal with the cases already in the system.”

“While we recognise that certain crimes are spontaneous in nature and will likely not able to be deferred, there is no reason why, for example, most species of fraud could not be put off for a reasonable period of time. It is never appropriate to drink and drive but it’s really really not appropriate over the next year and a bit. We are also asking people currently engaged in any type of conspiracy to check in with your fellow members and come up with a timetable for your offending that respects current court workloads. We consider that, in the circumstances, these are reasonable sacrifices for persons to make, and will bring significant systemic benefits in allowing us to use existing judicial resource to focus on cases already in the system.”

“Should people not heed this request and choose to commit offences in the next 21 months it will be considered as evidence of premeditation in the offending, and treated as an aggravating factor under s 9(1)(i) of the Sentencing Act 2002. We want to reassure New Zealanders that, given this factor applies only at sentencing, there is no risk of this applying to those acquitted of offences. Further, it requires no legislative change and simply represents an extension of well-understood sentencing principles to the challenging situation that COVID-19 presents.”

“This approach will take immediate effect and will operate until around August when the Court of Appeal will probably overrule it.”

Sovereign citizens and lawyers: how to tell them apart

Sovereign citizens think that a name written in CAPITAL LETTERS denotes a different and special meaning. Lawyers know that it is really italics that do that.

Sovereign citizens write strange phrases on the top of their legal documents seeking to unilaterally impose certain legal obligations on another party. Lawyers may write without prejudice, or in confidence, or send statutory demands, but they certainly don’t indulge in that strange carry-on.

Sovereign citizens say an old edition of Black’s Law Dictionary as an authoritative source of law. Lawyers know that the law isn’t what a some editors of an early 20th century dictionary say it is; it’s what a bunch of judges in 18th century England says it is.

Sovereign citizens insist that their identity in one capacity is separate to that in another capacity and that protects them from liability. Lawyers cite Re GJ Mannix and sue people in their role as trustee.

Sovereign citizens get their arguments laughed out of court. Lawyers get their arguments laughed out of court but charge $400 per hour for the privilege.

Sovereign citizens think that there are magic words you can say that mean the state cannot control you. Lawyers know that it’s no exaggeration to say that an applicant for habeas corpus pretty much only needs to say those words and if the state can’t prove the legality of their detention then a Court will order the release of the applicant on the spot, and if that isn’t the equivalent of magic words then I’m not sure what is.

Sovereign citizens make strange claims about admiralty law. Lawyers also make strange claims about admiralty law because pretty much no one has read Part 25 of the High Court Rules 2016.

Sovereign citizens assert that the judiciary is a shadowy undemocratic cabal of well-connected people. Lawyers know the judiciary is a bunch of people often from the same handful of families appointed in the absolute discretion of the Attorney-General.

Sovereign citizens allege the state creates legal fictions around births and birth certificates. Lawyers know that the state doesn’t do that. Except with the entire concept of adoption.

Sovereign citizens think that they can upend an entire existing legal order simply by asserting saying that sovereignty exists. Lawyers know that only William Hobson could do that.

Sovereign citizens’ approach to law involves picking and choosing some statutes to apply while seemingly ignoring others, as if there is a way to ignore some primary legislation. Lawyers only do that if they’re applying Fitzgerald v R.

Obiter Legal Rankings

I love legal ratings agencies. They make it easy to forget we are part of a profession and pretend for a second that we work in an ~industry~. I take nothing away from anyone who’s been the subject of one of these Legal 500 or Doyle’s Guide or Chambers and Partners assessments (or, heaven forfend, LawFuel’s Power List…). It is only proper we should recognise achievement when we see it. That’s why everyone gets a medal in the Weetbix Kiwi Kids Tryathlon.

There is a strange sort of language in the assessments the agencies use: people are key players, they are heavy hitters, everyone is described with breathless positivity. The whole thing is an exercise in seduction aimed at the competitive pathologies that most lawyers (myself included) do their best to conceal. And if I’m being honest they are a sort of a privatised silk list, when for unexamined reasons I don’t have a problem with the idea of Queen’s Counsel.

Still, the shape of the sentences, the familiar adjectives, these descriptions are all so readily at hand that there really shouldn’t be anything stopping any of us getting a comment from an agency. Introducing Obiter Legal Rankings – the only professional legal ratings scheme which recognises that we all have talents, probably, and refuses to let individuality get in the way of a generic compliment.

Best regards,

An astute operator who has got what it takes and who brings a wise objectivity.

OLR

Strictly Obiter Law Awards 2021

It was the worst of times, it was the worst of times, it was the age of foolishness, it was the age of foolishness, it was the epoch of incredulity, it was the epoch of incredulity, it was the season of darkness, it was the season of darkness, it was the winter of despair, it was the winter of despair.

2021 has been a rough year. Rough on New Zealand, rough on lawyers, rough on the Chief Justice’s stationery set. Even January – possibly the only nice part of the year – featured a Colin Craig judgment.

More normal times between February and August were filled with the soul-grinding despair of civil/commercial law. There were the cladding cases, all of which took on water. Teams of counsel – dozens strong – crowded the High Court daily list, all grist for the mill in cases that seemed to leave homeowners high and dry, and their homes low and damp. Proving that misery loves company law, the Court of Appeal released the Mainzeal judgment just before Easter. Then, contract interpretation in the Supreme Court again – a topic which gets revisited so often that the judicial method now mostly resembles drunk-texting an ex. The one bright spot: a rumour in May that Dame Sian Elias might be appointed Governor-General. But even that ended in shattered hopes and dreams for those of us keen to dust off our binders of Elias CJ jokes (Q: What is Elias CJ’s favourite dessert? A: A banana 4:1 split.)

On to August and the delta variant struck the one person in Devonport who is not a commercial law firm partner. The entire country reacquainted itself with VMR and had to receive an official reminder not to stand when a judge comes on the line lest you shove your crotch into the camera. Home renovations were reduced to trying to find a plain white background for VMR appearances. Plain white backgrounds in hearings were, incidentally, more difficult to find than the plain white foregrounds the profession has been rocking for decades.

Then, as the Auckland lockdown exceeded initial time estimates worse than a silk who likes the sound of his own voice, the Auckland-based virus went on circuit to Hamilton and Whangarei and soon the regions had more Covid cases than Mike Heron has independent inquiries. Quelle surprise as decreasing alert levels led to more cases – the alert level changes giving off a real “let’s give tailored discovery a go – we can probably get by on the key docs” vibe, only for the country to find itself halfway through a five week hearing with witnesses referring to dozens of crucial emails counsel has never seen before.

Outings were cancelled. The Supreme Court didn’t make it to Auckland. Presumably the bench turned up to the southern boundary checkpoint in the Court’s 2006 Toyota Previa and told the cop there that they had the power to overrule any court in the country, and were mistaken for all the other freemen on the land.

And if you think that’s grim, there’s worse happening in all the areas that I’m not allowed to write about!

And now the year is concluding with death stalking the countryside, death stalking the legal aid system, and the Strictly Obiter Law Awards returning for 2021. Things simply could not be worse.


Best impression of the Chief Justice

Screen Shot 2021-11-21 at 11.17.04 AM


Best headline about a mid-tier law firm

Mid tier


The Downs J Medal for Shortest Sentence in a Judgment

Campbell J in Mountfort v Cheam [2021] NZHC 1535 at [53]. Indeed.

Indeed


The Christopher Bishop Legal Article of 2021

“Why practice ACC law?” by Molly McCarthy. What the judges said: “Enjoyed your piece in law talk.”


Best new trustee duty

The duty not to be “weird and inappropriate” from Macnamara v Macnamara [2021] NZHC 173 at [32]:

Weird


Community Spirit Award

Judge David Harvey

Harvey1


Most unusual aggravating feature of offending

Bleeding over things. From Brown v Police [2021] NZHC 2801 at [11].

Bleeding


The John Waite “I Ain’t Missing You At All” Award for We Had A Good Thing Going

The New Zealand Administrative Reports (second year in a row).


The Moist Medal For The Term That Gets Used A Lot But Which Makes Me Personally Uncomfortable

Low bono


Law student of the year

Grant from Banks v Farmer [2021] NZHC 1922:

Grant

If you are Grant, please DM me on Twitter to collect your prize.


Best Album/EP About District Court Reforms

Lorde – Te Ao Mārama


Illicit substance of the year

Wellington milk


Parliament’s Prize for Constitutional Orthodoxy and Basic Reading Comprehension

William Young J


The Snail in a Bottle of Ginger Beer Endowment for Case With The Least Likely Facts

Maharishi Foundation Inc v Benner [2021] NZHC 1930. The New Zealand Maharishis are fighting over a domain name and it’s also about trust law!

Screen Shot 2021-12-05 at 9.52.15 AM


The Friendly Fire Award

The Free Speech Union for their press release announcing that Prof Philip Joseph had joined their legal team.

Burn of Jack Hodder


Legal headline of the year

Highly commended: The return of Toogood J to the bench.

Toogood

Winner: So much going on here.

Allegedly murdered man


Citation for bravery in complying with client instructions

Judge Callinicos’ lawyers who attended the meeting with the Chief Justice, presumably wearing brown trousers.


Best trust name

Family trust name


Worst cover of a legal publication

Law News for its calm, contemplative illustration of the idea of hate speech laws which are like book-burnings for reasons neither fully, nor partially, explained in the article?

Screen Shot 2021-12-05 at 10.23.12 AM


Best new product from a legal publisher

CJ's correspondence


First through seventh place at the Weetbix Kiwi Kids Tryathlon

7 RMac Partners


Best Absence of Self-Awareness from the Academy

Call for papers about these supposedly different topics for the Public Law Conference 2022.

Public Law Conference


Most disturbing treatment of law reports

I don’t care if it’s decorative – there are some things you Just Don’t Do.

Worst treatment of law reports


Best collaboration, worst press release

Buddle Findlay

Collaboration

The Supreme Court’s pizza order

The Chief Justice, with whom Williams J agrees, supports ordering one large ham pizza. William Young and Ellen France JJ agree that one large ham pizza ought to be ordered but only if it is stuffed crust. Glazebrook J disagrees, preferring Hawaiian pizza, but would agree to support ordering a ham pizza as long as it has pineapple on it. Winkelmann CJ, William Young and Ellen France JJ join Williams J’s reasons explaining why pineapple ought not to be on pizzas. Williams J does not exclude the possibility of stuffed crust on pizzas with appropriate toppings but it depends on topping and is not appropriate with ham. Winkelmann CJ would exclude the possibility of stuffed crust under all circumstances. Glazebrook J would exclude stuffed crust unless the stuffing was pineapple.

Williams J would order fries as a side. Ellen France J would order fries unless all pizzas come with stuffed crust in which case there will be sufficient food. Given the view of the majority on stuffed crust, in this instance she supports ordering fries. The Chief Justice considers fries are more of a burger thing and that garlic bread is the appropriate side for most occasions of pizza. William Young and Glazebrook JJ disagree and write joint reasons how garlic bread is substantively similar to pizza on account of being bread-based and for that reason is not an appropriate side to pizza. However William Young and Glazebrook JJ disagree on appropriate sides. William Young J would favour cheese knots. Glazebrook J would order a small Hawaiian pizza as a side.

The Court was largely in agreement on drink choice. Glazebrook J supports ordering Pepsi because of the flavour range available. William Young J also supports ordering Pepsi but because it is one dollar cheaper than Coke. Ellen France J supports order Pepsi as long as she can collect the bottle label for the promotional sweepstake. Winkelmann CJ and Williams J express no opinion on choice of drink.

In accordance with the views of the majority the Supreme Court ordered one pineapple-flavoured Pepsi.

A short account of hazards faced in court

The greatest jeopardy I have faced to date in Court was when I argued an appeal in front of Brewer J. The other side didn’t turn up but that promising start evaporated when the first words out of his Honour’s mouth were that he didn’t see how I was “getting home on this one”. I ventured 15 minutes of submissions into a fraught judicial headwind and the decision was reserved. My sense of deflation persisted the two weeks it took for judgment to be delivered – a judgment that found for my client but took time to disagree with every legal point I had made. At the time I didn’t know whether to laugh or cry. Experience has taught me that is often a symptom of encountering justice.

Still, all very pedestrian for modern legal practice where the day-to-day risks usually only involve having a metaphorical book thrown at one. 

I can’t remember where I saw it first, but I read a story about a New Zealand courthouse ceiling collapsing on someone once. Fiat justitia ruat caelum. Let justice be done, though the heavens fall. That’s danger. 

But then I read another story about a courthouse ceiling collapsing on someone. And I thought: “how many bloody ceilings have collapsed in New Zealand?”.

As it turns out, many. 

Non-sticking plaster

On 22 May 1935, a “large piece of decorative plaster work” fell from the ceiling of the Invercargill Supreme Court lobby, striking and “temporarily stunn[ing]” a lawyer called Gordon Reed. Contemporaneous reports record that when “Mr Justice Kennedy was about to make fixtures, a few minutes later, Mr Reed, with his hand to his head, from which blood was trickling, put in a belated appearance and apologised to the court for having to seek leave to seek a doctor”.

Today, that would be band three of Taueki – four aggravating factors being present – serious injury, use of a weapon, attacking the head, and perverting the course of justice (if you accept my optimistic submission for the Crown that Reed was prevented from making legal submissions). But in 1935, the courthouse seemed to avoid immediate official sanction. A grand jury recommended a new courthouse ought to be constructed (Kennedy J quoted in “Invercargill’s New Court-House” (1942) 18 NZLJ 65 at 65). Work began in 1938 and it was opened in 1942. At the opening, the several speakers described how uncomfortable and unsuitable the old courthouse was. Only Kennedy J mentioned that it once almost did for a member of the bar. 

Gordon Reed outlived the courthouse, just. The picture below is from the New Zealand Law Journal and shows him at the opening of the new courthouse ((1942) 18 NZLJ 65 at 67). He died suddenly in 1945, age 49, when he dropped dead on a golf course.

Reed2

Although the incident was possibly the first time in history that both bench and bar were in agreement as to which was acting like they’d just sustained a serious blow to the head, it was not the only instance of collapsing ceilings. 

Part of a plaster ceiling collapsed in the Lyttelton Resident Magistrates Court in 1884. It missed the participants “though some of the fragments sprinkled the heads of a few of the occupants of the gallery”. The same year, the South Canterbury Times warned that the ceiling in the courthouse at Timaru “is now showing signs of disintegration, and any of the public is liable at any moment to be smitten on the head with a descending lump”. Perhaps, as the issue only affected the part of the ceiling over the public gallery, it was not thought to be so pressing, although the South Canterbury Times was not impressed. It was sure to note in its report that the ceiling over the head of “the presiding genius” was holding up well. 

That was not the only near miss. The Wanganui Courthouse ceiling nearly collapsed in an earthquake in 1929. In 1927, a bailiff at the Christchurch Magistrates Court had a piece of paper knocked from his hand when a piece of plaster measuring three feet by two feet crashed from the ceiling of the court clerk’s office. And the Invercargill Magistrates Court – in the same building as the Supreme Court that nearly took out Gordon Reed – joined in again in 1938 when “a great mass of plaster and cement had become detached from the ceiling over the public stairway to the Supreme Court and had fallen on the stairs”

In 1951 in Dunedin “during a sitting of the Supreme Court a large portion of the ceiling gave way and substantial portions of plaster fell about the dignified figure of James Ward” (Iain Gallaway “The First Hundred Years 1879-1979” in Jim Sullivan (ed) Occupied Lawfully – Otago District Law Society 1979-2004 (ODLS, Dunedin, 2006) at 16). Gallaway records Ward was unharmed but died 11 years later when he was sent a parcel bomb at his law office – a crime that is still unsolved, and a reminder that a few falling chunks of internal masonry have to be kept in perspective. 

The Supreme Court building at Auckland was similarly plagued. In 1924 the Herald recorded: “A portion of the plaster ceiling in a new lavatory in the Supreme Court fell yesterday, fortunately without injuring anyone. Some few months ago another part of the ceiling came down, and prior to that one of the massive upstairs windows was blown in. It has frequently happened that the rain penetrates to the inside, and on one occasion the Judge’s desk in the Arbitration Court was deluged with water”. The Herald recorded a further fall of a ceiling a few weeks later and recorded that “no active steps ha[d] been taken to effect repairs” since the earlier collapse. Those are the incidents I could find in a Saturday afternoon of searching, but the phenomenon seems to have been so common in Auckland that it was the subject of an 1883 cartoon in the Auckland-based Observer:

Observer ceiling cartoon

Dr Jane Adams offers a scholarly take on the history and design of New Zealand courthouses, including their shortcomings (for a start you might like to read her article “Majesty and modernity” [2018] NZLJ 99). But the impact of near-death ceiling collapse on at least two generations of lawyers has yet to receive proper scholarly attention. That is something I hope this piece will begin to remedy. As has been remarked, “There is no doubt that among the allies of fraud and crime can be numbered unsuitable Court Houses” (Anonymous “Court houses and other things and persons” (1926) Butterworths Fortnightly Notes 451 at 452). As for the causes of the ceiling collapse phenomenon, well, contemporaneous reports on courthouses were headlined “timbers affected by borer”, but the articles that followed were silent as to which particular judge was to blame. Plainly, further investigation is needed.

Cheating death

The risk of instant skylight-creation wasn’t the only jeopardy facing practitioners in the first hundred odd years of colonial legal practice in New Zealand. Courtrooms were interrupted by fights, including one where “a small man was chased through the court-room by his big wife”. The criminal proceeding that followed included “an exhibit of hair alleged to have been from the head of one of the men”. Drunkards shouted from the public gallery, including one man described so well by the Victorian-era Evening Star as “an inebriated auditor of the proceedings”.

Returning to Invercargill, which we can now recognise as the most perilous site of justice in the country, in 1926 a steam stove exploded in a magistrate’s courtroom only 45 minutes before court was due to start. It effectively destroyed the entire room. The explosion broke every window, upended counsel’s table and the press bench, and embedded metal shrapnel from the stove in every wall. The consensus was it would have been unsurvivable if the room had been occupied at the time. Reports also relate that “plaster had been knocked down from the corner of the ceiling”, though in the circumstances it seems churlish to add that to our list of ceiling-specific failures. 

Incredibly, that is not the only instance in New Zealand of a courtroom being blown up. An aggrieved litigant blew up the Murchison Courthouse in 1905, injuring several but fatalitising only himself.

And that isn’t even the only intentional courthouse bombing in the country. In an event that seems to have disappeared down collective memory-holes, the Supreme Court at Auckland was “seriously damaged” by a bomb in January 1972 (see Sir Alfred North “Dissent and the Rule of Law” [1973] NZLJ 1 at 1). The event falls into the lacuna of internet-accessible history: it predates internet news stories and postdates Papers Past coverage, so as soon as I’m lawfully allowed into a library newspaper archive I want to find out more.

That’s about all I’ve got before we get to more modern examples. So I leave this short account of hazards with the following excerpt from the Otago Daily Times from 1938. It is a thing of understated beauty, and no more perfect thing has ever been written. In the meantime, stay safe in your bubble, and keep an eye on the ceilings when you are next at Court. 

Fire

 

Strictly Obiter Alert Level 4 Quiz – Friday 27 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. What is the (excellent) name of the earliest United Kingdom Act of Parliament to mention New Zealand?

2. North Shore and Nelson = 4.

New Plymouth, Gisborne, Napier, Whanganui and Invercargill = 3.

Kaikohe, Hastings, Hutt Valley and Timaru = 2.

What comes next?

3. List the five constituent parts of the Realm of New Zealand (at least in terms of those listed in Clause I of the Letters Patent).

4. Where did the first Court of Appeal sit in New Zealand (not including the “Court of Appeals” established by the Supreme Court Amendment Ordinance 1846 (Sess. VII, No. 3) that constituted the Governor and the Executive Council to sit as a Court of Appeals; I mean the first proper court of record)?

5. Which Supreme Court judge, earlier a prosecutor in the Hulme-Parker murder trials, delivered one of New Zealand’s most famous legal lines (famous not just in law but in public consciousness)? The line itself is in iambic pentameter.

6. What was the name of the forerunner of the New Zealand Law Journal?

7. Plenty of good fake law firm names – Dewey, Cheatum and Howe etc. – but the best (or my favourite at least) is Peabody, Peabody, Peabody, Hoots, Toots, and Peabody. Which author invented Peabody et al?

8. “I have often observed that when a man says he has acted on principle he has generally done something mean.” So spoke a late 19th and early 20th century Supreme Court judge. He sentenced Minnie Dean to death. And he was the first New Zealander to sit in the Judicial Committee of the Privy Council. Who was he?

9. As part of the group Aotearoa, what is the name of Williams J’s hit song from the 1980s?

10. Name New Zealand’s first female law professor.

Answers:

1: The Murders Abroad Act 1817. 2: Porirua and Papakura = 1. This is the number of judges assigned to locations in decreasing order, according to the District Court site. 3: New Zealand, Cook Islands, Niue, Tokelau, and the Ross Dependency. 4: Christchurch (in 1863). 5: This was Mahon J (and the line was “an orchestrated litany of lies”). 6: Butterworth’s Fortnightly Notes – if you go back to the earliest editions of the New Zealand Law Journal in Lexis Advance you’ll see they actually have that title. 7: PG Wodehouse, my fave. 8: This was Sir Joshua Strange Williams. 9: Maranga Ake Ai. 10: Shirley Smith.

That’s all for the daily quizzes for a while I think. I’ve got a hearing set down urgently next week that will consume some time, plus Auckland sounds like it’s going to be in alert level 4 for at least two more weeks (and I ain’t got that many questions!!). Thanks for playing along. If I can be bothered, this might come back weekly. Stay safe!