The Lower Cases (May 2022)

Not relevant, but still admissible.

In a month of Donoghue v Stevenson fever (and the even-worse snail trutherism) here are some things that caught my eye. No Depp v Heard. No Wagatha Christie. No leading Supreme Court decisions. Just a few bits and pieces.


Another victory for Trans-Tasman Resources

You may recall Trans-Tasman Resources Ltd v Just About Everyone Else [2021] NZSC 127, [2021] 1 NZLR 801, a Supreme Court decision in a case that started off about seabed mining but ended up being about high constitutional principle. You may also recall Trans-Tasman Resources from this Media Council ruling, where the Council pinged the Taranaki Daily News for uncritically repeating Trans-Tasman’s claim that its defeats in the High Court and Court of Appeal were actually victories. In much the same vein, on 19 May 2022, the Supreme Court decided the latest victory for Trans-Tasman; ordering it to pay $155,000 in costs. 


Holding up the holding up of traffic

As a semi-occasional visitor to Wellington who knows that no trip is complete without sitting in traffic on Cobham Drive, it seems extremely unlikely to think that any change to current arrangements could make things worse. Still, Wellington International Airport Ltd (WIAL) had taken up the cudgels against planned works for an “at-grade” pedestrian crossing on Cobham Drive. WIAL applied for interim orders under the Judicial Review Procedure Act 2016; a move that didn’t stop Grice J referring to interim injunctions. Justice Grice rejected the claim, in a decision with so many grounds it was approaching the kitchen sink rather than on the way to the Basin. The word “standing” didn’t appear anywhere in the 235 paragraph decision, despite Wellington International Airport Ltd having about the same standing as any resident of Miramar Peninsula to complain about traffic. It’s not like the pedestrian crossing was going to be installed across the bloody runway. WIAL later discontinued its substantive claim but not before proving my suspicion that we’re all just Weekend At Bernie’s-ing the doctrine of standing. 


A judgment for people who listen to their podcasts on 1.5x speed

Not on NZLII yet, but on Westlaw NZ, Smartpay Ltd v Kumar [2022] NZHC 997 has Downs J on top form, rocketing through a commercial dispute with an economy of language and maximum of force that I genuinely think is beautiful to read. It includes the razor-sharp line at [49]: “This argument is ingenious. And wrong.” [[chef’s kiss emoji]]


Dog line-up!


Seven of these dogs are good boys or girls. The eighth was suspected of an attack. But the visual identification procedure was found wanting, and so the charge was dismissed. I’m a cat person, so it’s not my place to criticise, but if dog is man’s best friend then technically that’s recognition evidence, and so there’d be no need for a visual identification procedure. 


Conduct that I’d hit the roof about if some litigant tried this shit: May edition

This story from Stuff about Business NZ:

The BusinessNZ list, which put New Zealand alongside Afghanistan, Nigeria, and China, had the title “‘Worst cases’ breaches of international labour treaties”.

But the original ILO title for the list was “Preliminary list of cases as submitted by the social partners Committee on the Application of Standards”.

BusinessNZ, employment relations policy manager Paul Mackay,​ admitted BusinessNZ changed the name of the list.

But he said it was not a mischaracterisation to say New Zealand was in breach of international labour law, when the ILO had made no such decision.

“It doesn’t have to be a past tense breach. An intention to breach is just as bad,” Mackay​ said.

Call the pre-cogs!


Strong benches

Strong bench

The Court of Appeal decided Watson v R [2022] NZCA 204 confirming that if the executive chooses to exercise the prerogative of mercy to send a matter back to the courts then the courts will do what they like with it regardless of the grounds on which it was referred. CS Lewis once observed that mercy detached from justice grows unmerciful, but he probably didn’t expect the New Zealand appellate courts to take that as encouragement to put another judicial claw into what the Court recognised is “distinctively an executive power” (at [16]). 

All of this is by-the-by though, because the judgment is notable for a more important reason: Kós P’s use of the term “strong panel” to describe a line-up of the House of Lords in R v Chard [1984] 1 AC 279 (HL) (Watson at [38]). A strong bench or a strong panel exists only where three conditions are satisfied: (1) the judgment supports your argument; (2) even though it was decided more than twenty-five years ago you recognise at least one of the judges in the line-up; and (3) you will not be taking questions about it at this time. It’s the same reason why, despite usually omitting judges’ names in my submissions, I strive to mention Tipping J or Sir Thomas Bingham MR if they wrote a decision on which I’m relying. 

Of course, if strong panels really did exist they would imply the existence of weak benches: line-ups of fumblers whose very presence would somehow mean the decision didn’t need to be followed. We may think that (indeed, we can probably name them), but decorum prevents us from saying it. 



The new textbook The Law of Costs in New Zealand was released this month. Costing just under 0.1 days costs at category 1, this new text promises guidance on an area of law that is predicated on being entirely at the discretion of judges. The book arrives cannily just before the Rules Committee promises to re-make large swathes of the costs regime, which guarantees a second edition. Doubling author royalties from LexisNexis will mean the authors will be able to splash out for an entire extra shot in their flat whites.


You don’t need a law degree for this: May edition

“Shooting somebody in custody in the absence of a justification is inconsistent with the minimum standards of detention arising from the duty to treat detainees with humanity, and with respect for their inherent dignity.” – Cooke J in Pere v Attorney-General [2022] NZHC 1069 at [42].


Other quotes

“Another under-explored question is the link between the purposes of sentencing and reality.” – Professor Kris Gledhill “Judges and Sentencing” in John Burrows and Jeremy Finn (eds) Challenge and Change – Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 326. Packed full  of entertainingly subversive sentencing arguments, hewing closely to the wording of the Sentencing Act. The chapter is a preview of every landmark sentencing case that will be heard over the next decade. All arguments waiting for their time to come. (Your author forgot he had ordered this book to be delivered at his much more talented wife’s chambers and has recently had to explain the purchase…)

“The defendant, having tried one ploy to evade paying what he owes, is now simply wriggling to find another.” – Judge Greig quoted by Palmer J in ICL Construction (2016) Ltd v Ian Roebuck Crane Hire Ltd [2022] NZHC 1047 at [2].

“In Mannix Cooke J observed that arguably there might be more ground for relaxing the cognate rule that a corporation has no right to file documents except by a solicitor. It seems to me that the case for relaxation of that restriction for access to justice reasons is even stronger today than it was in 1984 when Cooke J made that observation. But that issue should be determined in a suitable case following full argument.” – Goddard J indulging in some Mannix street preaching in Dokad Trustees Ltd v Auckland Council [2022] NZCA 177 at [20]. Footnote omitted. Incidentally, someone should ask Goddard J if he thinks Cooke, Somers and McMullin JJ was a “strong bench”.

In striking out Ms Sixtus’ claim in Sixtus v Ardern [2022] NZHC 1161, Cooke J recorded the claim as including complaints about “The Marsden Point Refinery … The Government’s Three Waters Proposal … Certain allegations made by Judith Collins … The establishment of two Mormon temples which was endangering the safety of the protestant religion … The disarming of protestants of their firearms [and] An allegation concerning Lexis Nexis.” No, it didn’t say what the LexisNexis thing was. I know. I’m disappointed too.


And, finally, if this was meant to cover serious legal developments at all, I’d be directing you to:

P v District Court at Manukau [2022] NZHC 1102 where a complainant in a criminal case successfully applied for judicial review of a court’s decision to stay a criminal prosecution. 

Jones v Minister of Justice [2022] NZHC 1177 where a prospective defendant successfully applied for judicial review of the Minister’s decision to extradition decision based on a failure to consider whether Mr Jones might be tried in New Zealand, with the overseas complainant giving evidence by AVL. 


Bonus son-of-a-judge quiz

Below is a quiz I wrote a while back when “son of a judge” was big news. I didn’t publish it at the time because it felt too much like having a go. But I like the questions, and so now that sufficient time has passed, you could have a go if you like.

1. Which son of a judge had the title of his father’s book addressed to him?

2. Which son of a judge was Solicitor-General?

3. Which son of a judge was a Governor-General?

4. Which son of a judge was a President of the Law Commission?

5. Which son of a judge is a judge whose father was a modern Supreme Court judge?

6. Which son of a judge was a judge whose father was an old Supreme Court judge?

7. Which son of a judge was the first New Zealand-born old Supreme Court judge?

8. Which son of a judge is a judge whose father was Chief Justice of New Zealand?

9. Which son of judge was a judge whose father was Chief Justice of New Zealand?

10. Which son of a judge is a judge whose father was also the son of a judge?

Answers only if I can manage to write another one of these next month.


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