Strictly Obiter’s 2019 Law Awards

It’s almost the end of the year!  Time for a retrospective.

I don’t know how the real Law Awards started.  Presumably the person responsible surveyed the legal industry and decided that the solution for its myriad problems was more self-congratulation.  It functions now as a sort of peer support group for those whose glory days were high school prizegivings.

It’s arranged by Key Media, who publishes NZ Lawyer Magazine.  NZ Lawyer Magazine is probably best known for sending Morning Briefing emails which contain legal news essential to New Zealand lawyers such as “Ashurst opens Global Delivery Centre in Brisbane”, “Burford Capital makes governance change ahead of US IPO plan”, and “Hogan Lovells to go solo in Joburg with separate SA firm”.

But the Law Awards are important: who doesn’t love celebrating an “inaugural medium-term note issuance and sustainability financing framework”?  That is why we all went to law school.  There’s also a prize for mid-market deal of the year, which is great if you’re a fuel-efficient Holden station wagon and slightly less great if you are a lawyer who is an adult human.

I suppose it’s just all very good at celebrating the business of law, and not the things about law that are interesting: the quirks, the ironies, the curiosities.  Every day, new cases come out on NZLII and they’re like tabloids if you read them the right way: “Guess what this judge said?” or “Ancient legal doctrine has flash new makeover”.  Plus you can normally headline them with a terrible pun.  Academics and judges devote their lives to swimming in the deep end of the law, but as someone who can barely swim I’d like to think you can have plenty of fun in the shallows too.

So, with all that in mind, here are the things I’d give awards to for this year.

 

Category: New Chief Justice of New Zealand of the Year

Winner: Chief Justice Dame Helen Winkelmann

What the assessors said: The first time this award has been conferred since 1999.  Tough to find an angle to parody in the same way as one could have Elias CJ dissenting all the time, but there’s something to be done with hyper-competence.

 

Category: Best Court of Appeal Decision of the Year

Winner: Misa v R [2019] NZSC 134

What the assessors said: Technically a Supreme Court decision, though you wouldn’t know it to read it.  The Supreme Court affirmed a bunch of Court of Appeal authority on miscarriage of justice and half the word count of the decision seems to be devoted to phrases like “we agree with the Court of Appeal”.  A real value-add.  (To be fair, when read in conjunction with Sena v Police [2019] NZSC 55 the Supreme Court had a good forking-over of the grounds for conviction appeal this year.)

 

Category: Best Dodged Question of the Year

Winner: Court of Appeal in Hai v Minister of Immigration [2019] NZCA 55,

What the assessors said: Ever since Machida v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 162, [2016] 3 NZLR 721, we’ve been left to wonder whether the “any other reason” ground for leave to appeal to the High Court in s 245 of the Immigration Act 2009 means the same thing as the “any other reason” ground for leave to commence judicial review in s 249 of the Immigration Act 2009.  Identical statutory language, but Machida only pronounced on the s 245 test.  Given that Parliament intentionally amended s 249 to be identical to s 245, in order to reduce the number of applications for judicial review, an identical interpretation seems consistent with the legislative intent.  Since just before Machida, though, Palmer J has been leading an armed insurrection from the High Court bench arguing that the s 27 NZBORA right to judicial review means a more generous interpretation should be given to the “any other reason” ground for the test under s 249 (see three Palmer J decisions: (RM v Immigration and Protection Tribunal [2016] NZHC 735; AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471; and Hu v Immigration and Protection Tribunal [2016] NZHC 1661).  The Court of Appeal’s first time dodging this question in Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 was good but at the time the assessors felt it needed more time to develop, and for the Court to really commit to dodging this important question of statutory interpretation.  This year, we are pleased to confirm that that commitment is really on display when the Court went full on “lalalalala we can’t hear you” in Hai and again declined to answer the question, saying “For the reasons that follow, we do not need to resolve the issue in this application either” (at [39]).  Classic.  And in the meantime, there are maybe two dozen of these cases per year in the High Court without an answer to this question.

 

Category: The “You’ve Gotta Be Kidding Me” Prize for Bizarre Statutory Interpretation

Winner: Decision Suppressed [2019] NZCA 612

What the assessors said: You’ve gotta be kidding us.

 

Category: Prize for Party Anonymisation That Sounds Most Like A Civil War At Crown Law

Winner: SG v DSG [2019] NZHC 218

What the assessors said: Picked at random you say?  Suuuuure.

 

Category: Best coverage of a (quasi) judicial proceeding.

Winner: @economissive for this Twitter thread covering the Operation Burnham Inquiry hearings.

What the assessors said: Captured the vibe of cross-examination that had more skewering than a kebab shop.  Fantastic public service in tweeting this.  See also Thomas Manch’s reporting on stuff.co.nz which gave excellent write-ups.

 

Category: Figurative Attack on the Judiciary Award

Winner: Mark Mitchell, National Party Justice Spokesperson for the executive sending much stronger signals to the judiciary about sentencing policy.

What the assessors said: We can’t really improve on what the Chief Justice said.

 

Category: Non-figurative Attack on the Judiciary Award

Winner: Gilliland v Police [2019] NZHC 289

What the assessors said: This joke is in tremendously poor taste.

 

Category: Shortest Substantive Decision of the Year

Winner: Ullah v Chief Executive of the Ministry of Business, Innovation and Employment [2019] NZHC 332

What the assessors said: Eight paragraphs for an application for judicial review.  No messing around.

 

Category: Classic Brewer J Moment of the Year

Winner: Still wearing his ceremonial red robes when presiding over admission ceremonies as late as November 2019, despite the ceremonial reds being discontinued.

What the assessors said: Classic.

 

Category: Award for Looking Like Parents That Are Just Happy That You’ve Come Out Of Your Room And Joined The Family At The Table For Dinner, It’s So Nice To See You And We Can Eat Together As A Family Tonight

Winner: These two from the new Courts of New Zealand Video:

Mum and Dad

 

Category: Best PR in the Business Award

Winner: Whichever media liaison person shut down that “My sister is the Chief Justice” story which got precisely one story on NBR and then no one ever talked about it again.

What the assessors said: Sure, it was someone saying something dumb and only speaks to poor judgement on the part of the person who said it, but it is astounding that this didn’t get more play.

 

Category: The Austin Powers Award For Bringing Back The Swinging Sixties

WinnerH (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433

What the assessors said: Anisminic is back baby!  A decision written by O’Regan J, but also one of the last decisions of Elias CJ before she was out the door.  A threat to ouster clause detente off the back of a highly sympathetic set of facts.

 

Category: The “I Just Have To Remind You That You’re A Judge Writing This” Prize.

Winner: Kós P and French J in Zhang v R [2019] NZCA 507 at [51] which included the line that drug mules “may or may not apprehend the scale of the contents of their bags or bodily passages”.

What the assessors said: Christ.

Highly commended: Kós P in Orchard v R [2019] NZCA 529 at [1] which opened the judgment with the line “Mr Orchard, an arborist, fell from a tree”, before going on to describe a grim-as-fuck set of facts.

 

Category: Most Suspicious Art Design in Judicial Photographs

Winner: The background of the photos of new senior court judges, like this one:

EAYGUobU0AADhgR

What the assessors said: All the judges sworn in in Wellington this year had this background, which is a dazzling array of volumes in primary colours.  It looks really good!  But is it a genuine array of books?  Any report series or statute series has to be longer than the few volumes displayed from each series, right?  So has this collection been designed and curated solely for the purpose of being a background that pops?  That seems unlikely given it would have to be maintained over the length of the various swearings-in this year.  We want to know what those books are!  If someone can get Strictly Obiter into what we assume is a library in the Old Supreme Court in Wellington, he will investigate and report back!

 

Category: “Times This Blog Nearly Got Into Genuine Trouble” Commemorative Plate

Winner: Publicising the Crown Solicitor at Invercargill’s strange LinkedIn comments about the Aoteroa Legal Workers Union where she seemed to say that young lawyers needed to harden up.

What the assessors said: The Crown Solicitor at Invercargill doesn’t have a LinkedIn page any more.

Highly commended: Complaints about my Mark Lundy tweets 😦

 

 

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