I’m meant to be writing a case note about the Craig v Williams [2019] NZSC 60 recall decision. But within the first five minutes I got distracted because the decision – like all Supreme Court recall decisions – is not attributed to a particular judge.
The decision has been criticised, both ably and less-ably. It’s a judgment that is powerful in its silence on Arnold J’s decision-making. It risks relegating the effect of the Guidelines for Judicial Conduct. And it’ll end up getting cited the next time a judge accidentally stumbles into a situation like this. The ratio appears to be something along the lines of brain explosions are not grounds for recall.
But could we figure out who in fact wrote it? Individual authorship doesn’t matter, really. All of the permanent members of the Court signed up to it so who cares who wrote it. But I spent three hours today (which is also my birthday) ctrl-F-ing through Supreme Court (and, in the case of Winkelmann CJ and Williams J) Court of Appeal decisions looking at writing style in order to try to find out. And I’m not going to let that go to waste!
So, with my armchair linguist hat at a jaunty angle, I present a wildly speculative analysis of the recall decision.
Before I do, I should say that I have zero connection with the Supreme Court (after all, they have standards). All of this, like everything else on this site, is Not Meant To Be Taken Seriously. On the off chance I’m correct, it’s just a guess.
There are three overlapping, distinctive features about the writing in the decision that I think warrant scrutiny. They are:
- What’s not said.
- Sentence starters.
- Description of submissions.
What’s not said
The first interesting thing about the decision is what’s not said. For example, the excellent passive voice language in the decision:
[3] A sailing trip was planned in which both Arnold J and Mr Mills would be participants. …
Was it? That sentence once used to say who had organised the trip. But the passive voice smashed down the door, grabbed that key information, and is now holding it at gunpoint in a basement somewhere.
… It appears that … inquiries were made of Mr McKnight, counsel for Mr Williams. …
Oh God! It’s taken a second hostage!
Actually, we learn later in the judgment that it was Mr Mills QC who asked Mr McKnight, so that one escaped or, possibly, it was released as a show of good faith.
It’s not solely the passive voice (which also features under other headings). It’s things like the absence of focus on Arnold J’s conduct as well.
In other circumstances, I’d suggest that this might be a hallmark of writing style. But here, I think those points are just symptomatic of the subject matter. So it’s necessary to look at the other two features of the decision.
Sentence starters
This is a short decision – only 20 paragraphs over seven pages. It’s easier then, perhaps, to spot concentrations of style. The writer has said at various points:
Further, if it was possible to consent, the consent given was not an informed consent because Mr Williams was not aware of the Guidelines.
Further, it is argued that the Guidelines are not a code and that the authorities confirm breach of the Guidelines does not create apparent bias.
Further, the events to which Mr Williams consented were in fact what occurred and in accordance with the conditions which Mr McKnight says he stipulated.
Further, to the extent the Guidelines could have provided relevant information to Mr Williams and his counsel, they are in any case publicly available.
I think this is Glazebrook J. Her Honour frequently starts sentences with “Further,”. I’ve taken the following examples from cases where Glazebrook J has written a judgment in a Supreme Court decision where at least one judge also wrote a decision (for comparison purposes).
In R v Wichman [2015] NZSC 198 William Young J wrote 131 paragraphs and only once used “Further,” to begin a sentence. Justice Glazebrook wrote 197 paragraphs and began a sentence with “Further,” 23 times.
Glazebrook J used it five times in the majority judgment in Quake Outcasts v Minister for Canterbury Earthquake Recovery [2015] NZSC 27, [2016] 1 NZLR 1 when no one else used it. Thrice in Proprietors of Wakatu v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423 when Elias CJ used it only once. Six times in Northland Environmental Protection Society Incorporated v Chief Executive of the Ministry for Primary Industries [2018] NZSC 105 when William Young J used it only once. In Scott v Williams [2017] NZSC 185 – when the Supreme Court did its best War And Peace impression, there were four separate decisions in which Glazebrook J was responsible for nine of 14 “Further,”s. The term doesn’t feature strongly at all in the decisions of Winkelmann CJ and Williams J that I read either.
I think this factor sounds moderately strongly in favour of Glazebrook J, but what other indication is there?
Description of submissions
The Craig v Williams recall decision has a third distinctive feature. It seldom attributes submissions to counsel. Instead, the writer uses the passive voice. So, we have these sentences in the recall decision:
It is submitted that what occurred here did not comply with the Guidelines particularly where the contact was such that counsel and the Judge were in close quarters over a week-long period.
In these circumstances, the submission is that there is an appearance of partiality when measured by the appropriate standard.
It is also submitted that, given the public interest in preserving impartiality, Mr Williams’ consent is irrelevant.
In any event, the submission is that there was compliance with the Guidelines because Mr Williams’ consent was obtained and there was no discussion of the case.
Finally, it is submitted the delay in raising this matter is tactical and contrary to the authorities which suggest questions of apparent bias should be raised promptly.
Which accords with Glazebrook J style (and only Glazebrook J’s style) of the judges on the panel that decided Craig v Williams. Again, I looked at a range of decisions using the same methodology as above. In Xu v IAG New Zealand Ltd [2019] NZSC 68 Glazebrook J wrote:
It is submitted that Bryant is either wrongly decided or distinguishable.
In the alternative, it is submitted that condition 2 of the Policy allows the appellants to restore the home and receive the replacement benefit.
It is submitted that Bryant was correctly decided and is not distinguishable and that condition 2 does not assist the appellants.
And in Quake Outcasts her Honour wrote:
It is submitted that the Crown’s actions in this case had significant practical effects which directly resulted in truncated rights.
In this context, it is submitted that the unequal treatment of the uninsured (and the delays in making decisions about their position) is unlawful, an abuse of power and inconsistent with the earthquake recovery purposes of the Canterbury Earthquake Recovery Act.
It is submitted that the Crown does not require statutory authority to provide information to the public. Ministers were able to make the decision that this information should be provided and the Prime Minister and the Minister were able to provide the information, in the exercise of the Crown’s common law powers.
As to the decision to establish the red zones, it is submitted that this was a delegated Cabinet policy decision, implemented by the announcement made by the Prime Minister and the Minister for Canterbury Earthquake Recovery.
… it was nevertheless submitted that the Act does not limit the Crown’s common law power to acquire land and personal property through voluntary transactions.
In addition, it is submitted that it was open to Ministers, when making funding decisions, to take these factors into account.
No other judge in those cases used that terminology.
No judge has a monopoly on “it is submitted”, but Glazebrook J is by far the heaviest user. And while her Honour also uses more active voice descriptions (eg. “Mr Goddard submits…”), a passive voice description of submissions is a notable and noticeable feature of her Honour’s writing. And other judges – Winkelmann CJ in particular – are scrupulous at attributing submissions every time they are referred to.
Conclusion
Add the two factors together and I would irresponsibly bet the house on Glazebrook J as author of the recall decision.
What this post can’t exclude is the idea that multiple judges contributed to the judgment. As a judgment of the Court, all judges would have had to be comfortable signing up to it, of course. But I think the brevity of the decision makes it less likely to have multiple authors.
If it is Glazebrook J’s decision, there is a certain institutional integrity to that. Her Honour was in the minority in the substantive decision. It speaks well of the Court as a whole that the question of recall is not used as a vehicle to relitigate the decision as between judges. Now if only they had said something about the decision to go sailing…
Strictly obiter 