It’s been a rough year.
It all started so well. January, February, March? Simple, innocent times where all we had to worry about was coming up with jokes about how five white male law firm partners turned up to a student event. A group of five white male lawyers is actually called a management board. They said it was pizza but it turned out to be Five Guys. The closest this came to having a woman was one of the pizzas was called Margherita. Etc etc.
But October, November? Suddenly everyone is saying “Attorney-General Winston Peters” like that’s a thing that could happen. What on earth happened?
It couldn’t have come at a worse time. We’re all too tired right now to be doing culture wars in the appointment of judges, but the paroxysm of coalition negotiations briefly forced it onto our list of things to care about. As if the solution to all our problems was ensuring we don’t appoint any more of these woke judges from Parnell, Herne Bay and Thorndon, instead of prosaic-but-difficult things like increasing legal aid funding, more court staff, and getting the Environment Court to stop using Cambria. Over the three or so days where that seemed possible we had the parties briefing the media to generate articles that included breathless lines like this:
We have that! It’s called an appeal!
A entire year of this criticism of judges discourse is so punishing because the commentariat imagines all judges are Chloe Swarbricks of the bench when in fact all judges are Gerry Brownlees. Or, to put it another way, Chris Finlayson did not spend nine years appointing members of the prison abolitionist movement to the bench.
Anyway, we avoided that crisis. And in words that none of us thought we would ever say, thank goodness for Attorney-General Judith Collins. Talofa, to the new silk. To whom much is given, much is expected, but we know she always gives back double.
Our Supreme Court didn’t issue another Fitzgerald type bombshell, mainly because these days the Court takes 18 months to issue anything. The appeal decision for Royal Forest and Bird v New Zealand Transport Agency has been reserved for over two years. It’s been so long that we’ve all had to prepare a secret intervention for the judges next February and lure them there on the pretext it’s a conference about 20 years of the Supreme Court.
We got Mainzeal. There is a perennial debate about whether our Supreme Court understands commercial law – an attitude mainly held by people who wouldn’t be satisfied by anything less than the ghost of Ivor Richardson presiding over every case. Let them whine. As Lord Mansfield himself once observed, it doesn’t matter what the rule is, just so long as there is a rule because that way large corporate law firms can do lots of client comms about it. Although, not to criticise, but the judgment seems to have failed to uphold one of the Supreme Court’s key constitutional responsibilities: infuriating Peter Watts KC.
It was the High Court that was the home of mildly subversive rulings this year. We had Parore v Attorney-General [2023] NZHC 1010 awarding legal costs as Baigent damages (although BORA damages have long been a cheque on the executive). We had New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183 that said that review for error of law is mandatory relevant consideration review now for some reason. And when that all got too serious we got James v Luxury Real Estate Ltd [2023] NZHC 1104 to tell us that shouting “fuck [this guy]” at someone wasn’t repudiation of a contract.
It’s a year in which I got beaten to within an inch of my life on a long-running difficult case that has been the most difficult of the nine or so years I’ve been doing this. And it’s a year that I’ve done interesting new law things. Both the bad and the good have made me grateful for supportive colleagues all the more. I hope you too have been blessed by the company of friends and loved ones.
Anyway, here are the prizes.
Best headline from 2023
I don’t know, man, I’m pretty sure they’re in favour, eh?
You will recall that this was in peak ramraid angst, where every columnist was calling for the Chief Justice to start personally installing bollards outside Michael Hill Jewellers or else have her Honour’s failure to do so be taken as proof positive that she was boosting Mazda Demios in her spare time. Tawdry stuff.
Best headline from 2003
I’m pretty sure I read Ngati Apa in law school and while we all love a good reboot let’s not do this one again.
Worst decision of 2023
This award was conferred at an earlier ceremony.
“I was doing a bit” of the year
Stephen Franks saying he is less confident in Chapman Tripp legal advice if the writer includes pronouns in the signature block. The thing you have to know about eye-wateringly expensive, 150 year old, gigantic corporate law firm Chapman Tripp, named after one of colonial NZ’s powerful legal dynastic families, and lawyers to most extractive industry in the country, is that it’s woke.
Best joke that wasn’t appreciated by any of you ungrateful bastards of the year
It’s because fraud unravels everyth- You know what? Never mind.
Opinion piece of the year
The Treaty of Waitangi gave me a papercut, by Gary Judd KC. Published by ADLS LawNews.
Best actor with general appeal
Court of the year
Jointly awarded between the People’s Full High Court in Huntly:
And the Vagina Court:
Tween birthday party disinvitation of the year
The ADLS Criminal Law Committee’s letter to the Minister of Justice saying that:
Invitations have been sent out in your name for an event at Parliament to launch a book authored by Professor Elisabeth McDonald, titled, “Intimate partner rape and the trial process: Research, reflections and reform”. It is likely that this book continues the author’s campaign for major changes to the conduct of rape trials.
It is the strongly held view of ADLS Criminal Law Committee that Professor McDonald’s work has harmfully influenced the legal landscape – to the detriment of those the law is actually required to presume innocent – and we suggest that her influence should not be further lauded.
Professor McDonald was one of the personalities behind the draconian ‘reform’ to remove the long-established right of defendants to lead relevant evidence as to sexual practices between the defendant and the complainant, within their prior relationship. That ‘achievement’ was enacted via the Sexual Violence (Legislation) Act 2021. Moreover, during her select committee appearance on the bill, Professor McDonald made comments that are reasonably interpreted as supporting the enactment of further circumscriptions as to even mentioning during trial, the prior relationship between the complainant and the defendant. I must let you know that the Defence Bar, will be implacably opposed to any further ‘reform’ along this track.
The whole thing is so great, by which I mean dreadful.
It would probably assist the profession if the Committee could state for the public record any other academics whose work ADLS (now The Law Association) considers has harmfully influenced the legal landscape to the detriment of those presumed innocent. That would let us all avoid inadvertent further lauding so that the Criminal Law Committee may in future focus on its policy work and advocacy for members.
If The Law Association will continue to single out academics, please could I suggest Sir John Salmond who taught in Australia from 1897 to 1906 and for that reason should be considered suspect.
Conference fee of the year
$2,799 for a conference? On current Baigent damages awards you would have to be unlawfully detained for eight and a half days in order to be awarded sufficient money to pay for a conference ticket. For $2,799 I want a conference goodie bag and a drinks function hosted on Arnold J’s yacht.
Blog comment of the year
I didn’t write much this year, but I very much enjoyed this comment:
The Golden 30 Foot Bargepole (awarded for best avoidance)
Awarded to the Supreme Court for once again declining to engage with the intensity of judicial review in Auckland Council v CP Group Ltd [2023] NZSC 53. Court-watchers will know that it is one of the Supreme Court’s longest standing precedents that it won’t say anything about intensity, and the Court boldly applied that approach here in what was at least a triumph for stare decisis.
Special Achievements in Interpretation
You know when the state put a man on trial for murder and he said he was Japanese and we gave him a Japanese interpreter and we got halfway through the trial that also had a Japanese interpreter and then defence counsel found out that he only thought he was Japanese and even then only because someone from the Korean-New Zealand community contacted him to say “hey I saw this on the news and that dude is Korean”? No? Well that’s what happened, as recorded in Yad-Elohim v R [2023] NZCA 136.
Euphemism of the year
You had to read it at the time. You’re going to have to read it again now. Yes, misbehaving lawyers are just “tactile and socially vivacious”. Sick bags provided on request.
Quote of the year (tangentially law-related)
A Marokopa local quoted by the Herald on the missing Tom Phillips (erstwhile alleged bank robber) and his children.
Feel-good planned terror attack of the year
This from R v G [2023] NZHC 434 as a reminder of the importance of kindness in all things.
Daftest thing I’ve read all year
Remember the Supreme Court decision in Moncrief-Spittle v Regional Facilities Auckland Ltd [2023] NZSC 20? That was the one that said that cancelling the venue booking for Lauren Southern and Stefan Molyneux was a demonstrably justified limit on freedom of expression, essentially because there was going to be a gigantic mob of people protesting and counter-protesting outside the Bruce Mason Centre and there was no way to keep people safe.
Well, the Free Speech Union drafted a bill that would prevent that from happening again. Yes, we thought we left the term “heckler’s veto” behind in 2022 but it follows us still.
The bill, which you can read here, includes a cl 3(a)(iv) that would prohibit organisations from taking into account health and safety responsibilities in deciding whether to host speakers. Then cl 5(a) would exempt them from prosecution under the Health and Safety at Work Act 2015. I don’t know what the answer is to difficult questions of free speech, but I don’t think it’s “commit crimes”.
That’s all I have. See you next year where we’ll all be doing and judicially undoing three strikes again. Rest up. It’s going to be busy.
Strictly obiter 