In Midland Bank Trust Co Ltd v Hett, Stubbs & Kent (a firm) [1978] 3 WLR 167 (Ch D), Oliver J wrote (at 183):
Mr. Harman’s submission seems, at first sight, a bold one, for there is a formidable and continuous line of cases, some of them decided since the Hedley Byrne case [1964] A.C. 465, which assert that a solicitor’s relationship with his client is a contractual one only and gives rise to no liability in tort. But boldness and wrongness are not synonyms and although justice is said to be blind, the doctrine of precedent does not prescribe that the court must blindly follow previous decisions without considering their rationale and the impact upon them of subsequent authority.
It is not clear that is the position in New Zealand where most bold submissions are missing, presumed dead. For example, in West Coast Environmental Network Inc v West Coast Regional Council [2013] NZEnvC 42 we have:
Bold comes in many flavours. A submission can be “somewhat bold” (Harrison v Harrison HC New Plymouth AP18/00, 11 September 2001 at [19]). It can be “to say the least, a bold submission” (R v Tye [2007] NZCA 330, [2008] 1 NZLR 214 at [17]). It can be “extremely bold” (R v Eide (2004) 21 CRNZ 212 (CA) at [80]). Or, worse, it can be “with respect … a bold submission indeed” (New Zealand Tamil Society Inc v Caisley HC Auckland CIV-2011-404-160, 13 October 2011 at [8]). And the only thing worse than a bold submission rejected summarily is for a court to note that “[t]hat was a bold submission – I am not sure that Mr Thorp appreciated quite how bold – but in any event I will deal with it”, then proceed to absolutely wreck you for the next five pages (Butler v Countrywide Finance Ltd [1993] 3 NZLR 623 (HC) at 631).
There is no greater hallmark of defeat than to have your submissions tagged by a judge with a positive adjective. Compliments are the handmaidens of judicial rejection. I defy you to find a “valiant” submission that a Court has ever accepted. Or a brave one.
So too with optimistic submissions. “Optimistic it may have been, but Mr Fairbrother submitted that optimism at the defence bar is not necessarily a bad thing in an adversarial system” (R v Huang [2009] NZCA 527 at [58]). That submission was itself… optimistic. Courts note when submissions are “highly optimistic” (R v Weatherston [2009] NZCA 267 at [30]) or when they are made with “a surprising degree of optimism” (A v R [2007] NZCA 448 at [29]). A submission can be “optimistic and untenable” (Wenzel v R [2013] NZCA 403 at [64]) or “optimistic, if not plainly ingenuous” (Burke v Superintendent of Wellington Prison [2003] 3 NZLR 206 (HC) at 218). And when courts are feeling really mean then “[o]ptimistic would be a charitable description of the last of Mr Comeskey’s submissions” (R v Huang [2008] NZCA 46 at [53]).
Meanwhile, the less convincing a submission the more ambitious it becomes. At the first level one gets an “ambitious submission” (Austin v Police [2013] NZHC 54 at [14]). Next, “a very ambitious submission” (Harrington v Wilding [2019] NZCA 605 at [42]). Then, “an extremely ambitious submission” (Duff v R [2020] NZCA 116 at [16]). And, lastly, if counsel has not already cringed themselves out of existence, a Court will describe your case as “with respect, an extremely ambitious argument” (Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA) at [152(b)]).
Novelty is not a compliment – not for submissions that are “somewhat novel” (R v Manuel [2020] NZHC 2587 at [20]), “rather novel” (Schuler v Grant [2014] NZCA 91, [2014] NZCCLR 19 at [40]), nor “novel and startling submissions” (Haig v Edgewater Developers Ltd (No 5) [2012] NZEmpC 189, [2012] ERNZ 543 at [69]). And for true novelty value, the submission ought to be recorded in full: “The suggestion that an order for costs of the High Court constitutes the proceeds of crime is a novel submission and … is ludicrous.” (Gibson v Dental Council HC Auckland CIV-2010-404-230, 28 June 2010).
If any of this comes as a surprise, then it shouldn’t. Judges love to record submissions as “surprising”. Submissions can be “somewhat surprising” (Field v R [2010] NZCA 556, [2011] 1 NZLR 784 at [186]), “rather surprising” (Taylor v Attorney-General [2016] NZHC 355, [2016] 3 NZLR 111 at [142]), “doubly surprising” (Paros Property Trust Ltd v Smith [2019] NZHC 1657 at [3]), or “distinctly surprising” (R v Guild CA219/04, 11 October 2004 at [82]). And in one of the best instances of a “nice try” on our books: “This most novel and surprising submission suggested an ingenuity deserving of a more worthy cause. It is, in my view, plainly untenable.” (McCormack v Ministry of Transport HC Wellington M732/87, 1 March 1988 at 3).
So, if you have enough courage (noting that “a courageous submission” will also come in for comment: Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462 at [213]), you too can advance bold, valiant, optimistic, ambitious, novel, surprising, brave and courageous submissions and go down in a screaming heap.
But that would be to ignore the lessons of the cases above. The smarter play is to ensure your submissions are craven, weak-willed, hackneyed, and knackered. That all but guarantees their acceptance. Goodness knows it’s what I do. And it’s the only way to avoid a situation where things get so bad your submissions are described as “heroic” (Police v Holland [2009] DCR 152 (HC) at [20]).
Strictly obiter 