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.
Strictly obiter 