Supplementary Remote Hearing Protocol for Courts of New Zealand

This supplementary remote hearing protocol is to be read in conjunction with whatever iteration of new guidance one of the courts put out today. It applies to all remote hearings conducted at levels one, two, three, four, and the hidden level five that you can only unlock by completing all the other levels first.

Business of the courts

All courts will continue to hear priority proceedings, these include bail applications and appeals, applications for freezing orders, and all spurious and non-spurious applications for habeas corpus.

Owing to the spirit of the times the Courts will not hear arguments relating to duties of care in negligence that turn on proximity, or contractual interpretation claims that turn on the doctrine of infection.

Hearings by AVL

Most hearings are now by AVL. All courts use the same VMR technology. The High Court and District Court permit the use of Zoom but for some reason the Court of Appeal forbids it. It is not intended that any explanation will be given about that.

While not accepting Zoom, the Court of Appeal will permit you to appear remotely by Snapchat, recording your submissions in a series of Snapchat videos, to be sent to the registry. Questions from the bench will be sent to you by return Snapchat video and, if the judge thinks the question is a really zingy one, posted to the Court of Appeal’s Snap story.

Supreme Court hearings will be facilitated exclusively through Houseparty.

If Houseparty is unavailable, then counsel are permitted to travel to the nearest Supreme Court Justice’s bubble and shout their submissions from the footpath.

At the end of a hearing, the matter will be adjourned apart heard.

AVL hearing etiquette

Counsel will be muted when not making submissions and, at the discretion of the Court, muted when making them too.

Counsel are not required to be gowned except when it comes to dressing gowns in which case counsel are required not to be gowned.

A formal standard of attire is required – after all, you’re not in the District Court any more.

You are not required to stand when the judges enter, unless you think giving the bench a close up of your crotch will help your case in which case go for it.

Hearings in person

Hearings in person will continue to be conducted (either in person in their entirety or partially through AVL to facilitate the attendance of one or more participants). The following modifications will apply:

Queen’s Counsel seating priority now means they will sit furthest from the bench.
Witnesses being sworn-in will be asked to place their hand two metres from a Bible.
The Court will not accept any documents to be handed up. Instead, any documents should be printed on size A1 paper in at least size 72 font, so that they can be read from a safe distance.
Should any physical exhibit need to be inspected, it should not be handed up. Instead, it should be left outside the courtroom in a sufficiently open and ventilated space. The Court will then use its powers to undertake a view pursuant to s 82 of the Evidence Act 2006.

Other matters

Please avoid the following phrases in written and oral submissions:

Just to touch on this next point.
Hand in glove.
A close reading of the statutory text.
Noscitur a sociis.

I read all 562 paragraphs of the Court of Appeal’s Strathboss decision so you don’t have to

Kiwifruit

What? I’m not going to summarise it. I’m just saying if you want an excuse not to read it then here it is I guess.

Members of Supreme Court regretting choosing to bubble together

Empty halls — The halls of the Supreme Court are empty as the Justices give each other the silent treatment.

Eight days in to the nationwide category 4 lockdown, tensions are running high within the Supreme Court “bubble”. Having opted to isolate together within the Supreme Court building in Wellington, the six members of the Court now face at least three more increasingly fractious weeks together.

The initial decision to spend the four weeks together was driven by the Chief Justice’s determination that, as an essential service, the Supreme Court would continue to operate. At the time the lockdown was initiated the Supreme Court lacked remote working capability as Glazebrook J had lost the charger for the Court’s shared, Ministry-provided Nokia 2280. That prompted a decision that the members of the Court would form a bubble together that would be based in their chambers in the Supreme Court.

To outward appearances that decision has seemed to work well, with the Supreme Court continuing to issue leave decisions and a substantive decision in Lodge Real Estate Ltd v Commerce Commission [2020] NZSC 25. However, individual members of the Court, contacting this blog under conditions of anonymity, have indicated that close confinement with their judicial colleagues is proving difficult for members of the Court.

“I’ll tell you what’s not an essential service,” said one member of the Court, “and that’s William Young J playing Kenny Rogers songs on full blast in his chambers. Or the time when Ellen France J did the shopping and bought blue top milk.”

“I could be at home with my family during all of this,” said another. “Instead, the Chief Justice is making us all bed down every night in sleeping bags spread out around the seats in the courtroom.”

“The only reason that there weren’t five separate judgments in Lodge Real Estate was because we had written most of it before the lockdown. It’s like the old saying about joining an appellate court: at the start of your time you figure you must be wrong, but the longer you spend the more you realise that no it’s actually your colleagues.”

The Ministry of Justice is currently exploring upgrading the Court’s Netflix subscription so that it can be played on more than two devices at the same time. This is said to be essential as “everyone but Helen has seen season three of The Crown and no one wants to watch it again”.

In a further letter to the profession expected to be issued on Monday, Chief Justice Winkelmann will write that “New Zealand courts must continue to uphold the
rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld, as well as ensuring that no dirty dishes are left in the common room sink, Ellen.”