The pernicious habit

In 1963, the Lord Chief Justice of England and Wales, Baron Parker of Waddington, traveled halfway around the world to warn New Zealand of the perils of unreported judgments.  At the 12th Dominion Law Conference, Baron Parker spoke on “The Problem of Precedent”, an address which seemed largely to lament the fact there were too many reported cases flying about (“The Conference Begins” [1963] NZLJ 155).  His Lordship cautioned (at 162):

To these difficulties there is an additional hazard in England, the use of unreported cases. I hope this has not become customary here since I believe it is a pernicious habit. It has unfortunately been positively encouraged in England as a result of the transcription of the shorthand notes of every judgment given by the Court of Appeal and the placing of a copy of the transcript in the London Bar Library.

The “pernicious habit” has, I think, never affected New Zealand so badly.   Not because we never had the habit, but rather because New Zealand courts have never been quite so convinced of its perniciousness.

New Zealand courts have been pretty good at realising that the problem of poor lawyering isn’t going to be solved by forbidding the use of unreported judgments.  We are stuck with both.

Twenty years after Baron Parker warned New Zealand, the House of Lords got the pip and prohibited the citation of unreported Court of Appeal civil decisions, except by leave (Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 (HL)).  Lord Diplock described the use by counsel of unreported decisions (which were transcripts of mostly ex tempore judgments) was “a growing practice and one which, in my view, ought to be discouraged” (at 201).  

But the reasons for doing so fundamentally related to poor lawyering (or, perhaps, short-tempered judging).  The unreported cases were only ever application of principle to a particular set of facts, Lord Diplock explained.  And you can get the principle itself first-hand from the reported cases.  In the meantime, counsel keep bombarding us with unreported judgments which (a) aren’t helpful; and (b) we have to read which takes a lot of time.

At the 12th Dominion Law Conference, Lord Parker had put it this way (at 163):

Precedent1

But Lord Parker’s example used books, which rather tends to suggest they were reported cases!  The complaint isn’t that unreported cases are the problem.  The problem is lawyers failing at the basics of legal reasoning such that they provide unhelpful cases.

And while the United Kingdom’s response was to forbid (for a time) the use of unreported decisions (at least in the House of Lords), New Zealand never did the same thing.  And I was interested in why.  So I went looking.

The first thing to note is that New Zealand courts of roughly the same vintage as Roberts Petroleum had an identical complaint.  When Cooke J became Cooke P, his Honour said (“Court of Appeal President: An interview with Rt Hon Sir Robin Cooke” [1986] NZLJ 170 at 173):

In this Court for a good many years now we have required a synopsis, but that has been expanded by many Counsel. Particularly in the bigger cases we get wads of paper, which come in not always at the same time but perhaps at different stages in the argument. Some of these I regret to say tend to ramble on. They tend to spend too much time in stating the obvious and further to go through, unless they can be stopped, a plethora of authorities, including a range of unreported cases at all levels, cases which do not necessarily throw any new thoughts on the subject. Generally speaking there is a tendency to be too prolix.

The report of Re Pennell (1991) 8 FRNZ 458 (HC) omitted the facts and reasoning of the case, and reported only Eichelbaum CJ’s lament that (at 458):

Before parting with the case I wish to comment on what I regard as the undesirable tendency in Family Protection Act cases of counsel placing before the Court numerous unreported first instance decisions where the circumstances of the claimants, the estate, or the awards are thought to bear similarity to the case before the Court. The making of an award under the Act involves a judicial discretion, to be exercised by the application of well established principles to the facts of the case. Access to unreported judgments now being a relatively simple matter, no doubt the temptation to scour the indices for such material is strong; but decisions should be cited for the principles they establish or support, not the view taken by other Judges on a particular set of facts. For my part, I gain little assistance from such exercises.

And the desire for brevity from counsel is probably shared by every member of the judiciary that graced the bench anywhere in the world.  Here is Eichelbaum CJ again in R v H CA434/96, 18 February 1997 at 4:

… if the point cannot be made by reference to a few decisions of this Court, generally it cannot be made at all.

So if New Zealand counsel were just as prone to injudicious citation of cases why didn’t we forbid unreported cases, at least in our Court of Appeal?

I can’t give a comprehensive answer, so I’ll settle for suggesting a mildly interesting one.

New Zealand suffered a reporting bottleneck in the 1980s.  Over the 1970s and 1980s, more litigation and more judges meant more decisions.  But the number of report series did not increase with it.  We had the New Zealand Law Reports, the Magistrate Court Reports, some other small specialised series like the Matrimonial Property Cases.  That led to a “an explosion in the number of unreported decisions of courts circulating within the legal community and being relied upon in argument before the courts” (Daniel Laster “Unreported Judgments and Principles of Precedent in New Zealand” (1988) 6 Otago Law Review 563 at 563).

The year after Cooke P (as he then was) lamented unhelpful unreported decisions he said this (Sir Robin Cooke “The New Zealand National Legal Identity (a speech to the New Zealand Law Conference, October 1987) (1987) 3(2) Canterbury Law Review 171 at 171-172):

It is very hard to form a reliable picture of what is actually happening in our courts without an adequate system of law reporting. The basic problem is that the output of judgments from all courts has increased enormously, far out of proportion to the limited increased space allowed by the division of the New Zealand Law Reports into two annual volumes. The Court of Appeal now disposes of some 500 cases a year. Of course only a fairly small minority of the judgments are worth preserving in the official reports. But the fact is that a smaller percentage of the judgments is being reported there than ever before; and then reported tardily, although well.

As at late September 1987 no decision given this year had appeared in the New Zealand Law Reports, and only a handful of last year’s. Collateral specialist series with more limited circulations are no substitute. Still less are loose copies. Most contemporary case notes are published while the judgment is unreported, so the serious reader would have little chance of perceiving whether or not the commentator was riding a hobby horse.

His Honour went on to call for more law reporting, including a dedicated appeal cases report series for New Zealand.

So New Zealand was stuck with unreported cases to cover the gaps, at least for a while.  Insisting on reported decisions would limit the pool of available cases to paddling depth, at best.

Then quite a lot began to change at the same time.  The mid to late 1980s saw the advent of the first electronic databases.  Courts continued getting busier, more judgments were delivered and we end up at the point today where we can access and search unreported cases more easily than ever before – either through NZLII or, for the masochists among us, JDO.

The result is that (it seems to me, at least) that law reporting never really caught up to a point where a rule to cite only reported cases could ever be practical.  Even the advent of the Criminal Reports of New Zealand and the Family Reports of New Zealand in the mid 1980s wasn’t enough to keep up with the onslaught of decisions from the courts.

Law reporting is an exercise in talent-spotting: what cases are going to be the stone-cold classics?  Gerard McCoy QC famously described the New Zealand Administrative Reports as the “‘first slip’ to NZLR to catch the ones that almost got past” (Gerard McCoy QC, Preface to the New Zealand Administrative Reports Cumulative Index 1976-2015, 14 February 2016).  Indeed, one of the early motivations of the NZARs was reporting all of the unreported constitutional and administrative law cases in Philip Joseph’s footnotes.  (Alas the NZARs have fallen into temporary abeyance on McCoy’s passing, and the NZLRs are obliged to report every substantive Supreme Court decision reducing the available page count for reported cases from the Court of Appeal and High Court.)

If law reporting cannot cover everything important, what does that mean for practice, and what does it mean for law reporting?

For practice at least, nothing has changed.  Current-day courts in Aotearoa New Zealand continue their long-standing approach of not requiring reported cases while seeking to avoid a deluge of citations.  The Practice Note for Civil Appeals advises (in an extremely Stephen Kós voice) synopses of written submissions should “eschew needless citation of authorities – one usually suffices…” (Practice Note for Civil Appeals, 1 February 2019 at [4(k)]).  That is all consistent with contemporary criticism of Roberts Petroleum by Francis Bennion ([1983] Gazette, 29 June 1983 at 1635):

No extra authority is conferred on any judicial decision by the fact that a law reporter has chosen to include it in his reports. Unreported cases have equal authority with reported cases, and therefore should be equally accepted in citation … True the Court should not be overwhelmed by unnecessary citations. The right of counsel to cite any authority he thinks fit is a vital one, however, and needs to be insisted on by the Bar.

It’s still very likely that a leading case will be reported in the NZLRs or a specialist series.  There’s a Venn diagram to be drawn of the “important cases” and what’s in the reports.  But reporting is not a guarantor of wisdom nor longevity.  Conlon v Ozolins is in the Law Reports.  So too is Vector Gas.  For my money one of the best decisions on the general approach to name suppression under the Criminal Procedure Act 2011 – Robertson v R [2015] NZCA 7 – has never been reported, not even in the CRNZs.  And sometimes you have to go searching for gold: R v Holt [2006] NZCA 105, [2006] DCR 669 is a fascinating Court of Appeal decision of high principle about amending charges outside statutory time limits that incorporates United Kingdom case law into New Zealand, but it’s slumming it in the District Court Reports!

Of something close to necessity, Aotearoa New Zealand doesn’t view the citation of unreported cases as pernicious.  But the habit of citing a long string of cases as individual examples of an accepted general principle is looked on just as dimly.  The danger of “unnecessarily extensive bundles of authorities” is ever present (Hay v LSG Sky Chefs New Zealand Ltd [2017] NZCA 153 at [23]).

As for law reporting, the questions are more existential.  If law reports can’t be everywhere, then can they justify sufficiently a partial coverage?  If they functioned as a current awareness service in a paper-only world, can they serve that function when a tweet can tell you about a new case?  Do the summaries of the facts and holdings assist in the age of Ctrl-F?  I dearly love law reports, and wrote headnotes for several years.  I would fight for them on the landing grounds, but my reasons for doing so are probably found more in my heart than my head.  But maybe that’s for a longer piece.

Reports suggest justice system costs money

Newly released figures show that taxpayers are forking out millions in tax dollars to ensure fair trials, safe convictions and a credible system of civil and criminal justice.  

That includes spending on things like criminal legal aid to ensure people have a fair defence, interpreters so that witnesses and parties understand what is going on, expert witness fees and even the cost of prosecutors.  It also includes judges’ salaries and pensions are set at a level that ensures a high calibre of judicial applicants and supports judicial independence by ensuring they are free from compromising influences.  On the list too were s 27 reports for those facing sentences and legal aid for Treaty of Waitangi proceedings.  

Nothing in the figures suggested that debate about the calibration of the spending was off limits, with experts quick to point out that there was plenty of room for legitimate debate about many topics including the overall price of legal services and the equality of arms between the Crown and criminal defendants in terms of funding.  In addition, the figures suggested that plenty of aspects of the justice system were in fact not funded enough, rather than funded too much.  However the figures did confirm that merely saying an aspect of the justice system costs X millions of dollars and expecting that to be taken as a legitimate criticism without a homeopathic hint of context cannot be viewed seriously.  

The Ministry of Justice confirmed the figures released today saying “A meaningful justice system that ensures people are treated as fairly as possible comes with costs that we meet because we live in a society,” before adding “for fuck’s sake”.  

An appeal judgment

Introduction

Since this is a judgment under two hundred paragraphs long, I will not begin with a faint stab at poetic licence by describing the physical setting of the events.  It’s a judgment, not some milquetoast TripAdvisor review.  Rather, it is enough to record that on X date, the District Court made the decision under appeal.  If I’m going to allow the appeal, I’ll either name the judge once in passing or, if I thought they really borked this one, I’ll omit their name entirely.  If I’m going to dismiss the appeal, I’ll give the District Court judge’s first and last name, IRD number, star sign and find a way to work in the fact they are an “experienced District Court judge” somewhere around paragraph 25.

Next I’ll state what the appellant’s grounds of appeal are.  These will largely be my gloss on what were incoherent grounds in submissions.  The sole exception is the one hopeless ground that appellant’s counsel stuck to despite my best efforts during the hearing to dislodge them from that rocky redoubt.  I will faithfully record that but with liberal use of inverted commas.

Then, briefly to the respondent’s position.  As usual, all the respondent has done is say “no it isn’t” every time the appellant has said “yes it is”, which is the height of advocacy for a seven year old.

As a final introductory remark I’ll regret the time it has taken to deliver this decision.  This judgment is being released one day short of three months after the hearing, because the cut-off for timely delivery stats is three months, and the Chief High Court Judge will get on my case if it ticks over to the three-to-six month band.

The facts

If we’re lucky the appeal is on a point of law so I can rip these from the decision below and just whack them in a blockquote.

If it’s an appeal against factual findings I have to carefully rewrite the facts from the decision below in my own words so it doesn’t look like I’ve ripped them from the decision below and just whacked them in a blockquote.  When it gets to the challenged facts I have to go back to the briefs/statements and transcripts of evidence, hardly any of which are pinpointed in the parties’ submissions but all of which have exploded comically across my desk.

Lastly, one of the parties spent a good 25 minutes at the hearing talking about one factual dispute which is now basically pointless because (a) it’s not material to my reasoning; and (b) I can’t read my own handwriting from the notes I took at the hearing.  Nevertheless I have to give that an airing in three or so vague paragraphs because if I don’t one of the parties will accuse me of overlooking it.

Test on appeal

Definitely a general appeal.  I think.  It’s usually a general appeal.  Anyway, time to find one of my old judgments and copy and paste the usual bit about Austin, Nichols or Kacem v Bashir or Tutakangahau v R.  

The grounds of appeal

One side’s submissions blow past any reasonable page count and the other side’s only meet it because they’ve not complied with rules about line and paragraph spacing.  Nevertheless, the job of a judge is to rise above.

Start with the only decent point in the entire thing.  Usually it is sub-point (d) of the third ground of appeal and occupies about two paragraphs of the written submissions.  But it’s the only point in the case that will let me get to the right result so the judgment will take a few liberties with how it’s characterised.  From that spark, to a blaze with the help of a few authorities my clerk found and at last we’re getting somewhere.

The respondent’s submissions cite unimaginative Court of Appeal decisions mostly from the 1980s and all before 2010.  It is just a wall of appellate authority saying you can’t do what the appellant wants to do, but in very general terms.  The submissions make no attempt to grapple with the individual justice of the case and proceed on a mistaken assumption that this is my first rodeo and some old Court of Appeal decisions can stop me.

Decision time.  This goes one of two ways.  To allow an appeal, I work forwards: find a very broadly expressed principle in the governing statute that can be used to support my reasoning.  Then, I’ll build upon this edifice ensuring the reasoning comes out in a “this is what Parliament wants” kind of way, and there are sufficient sockets to plug in the facts.  To dismiss an appeal, I work backwards: it’s a matter of saying the end result was correct, and after that any error by the court below didn’t or couldn’t affect the outcome.  At paragraph 25 I mention the fact there was an experienced District Court judge.  In extreme cases, I refer to the busy District Court list: the home of errors but not injustices.

The other grounds I can blitz through because they were only put out there on an “in for a penny” basis by counsel who mistakenly believed a person can have more than one good idea per case.  The grounds that don’t have a complete answer in the governing statute find one in common sense.

Result and disposition

I conclude by restating my conclusion as to the error or lack thereof.  If there is an error I need to state what to do, which normally involves overlooking the impact of some internecine interlocutory wrangling that neither party has told me about and which will force me to recall the judgment in a week or two to restate the relief.

I’ll give a tentative indication of any costs consequences that both parties will ignore, and so I’ll place a miserly page limit on costs submissions knowing that that will be ignored too.

Bold, novel, ambitious, and valiant

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:

WestCoast

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]).

Towards a national emergency stockpile of interesting reserved judgments

sns-warehouse-1

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.

Commentary about the Trusts Act 2019 except the word trust is replaced by tryst

IMG_2199

The Trusts Act 2019 enters into force tomorrow, 30 January 2021.  Make sure you know all about it with this collection of excerpts from reputable sources, altered only slightly by me.

First, Lawlink explains some of the background:

Many New Zealanders are involved with trysts in some way, whether as trystees or beneficiaries of family trysts or as volunteers with charitable trysts. However, despite the popularity of trysts, the law relating to trysts is often archaic and difficult to follow. Over the past decade, the Law Commission has led a review of the law of trysts intended to modernise the law and make it more accessible. This review ultimately resulted in the enactment of the Trysts Act 2019.

Some of that modernisation is timely because “[m]ost New Zealand Trysts are used to hold assets, and historically may not have always had a lot of involvement from Trystees“.

The Act will set out a range of mandatory and default duties.  MinterEllisonRuddWatts sets those out:

The mandatory duties are:

  1. a duty to know the terms of the Tryst;
  2. a duty to act in accordance with the terms of the Tryst;
  3. a duty to act honestly and in good faith;
  4. a duty to act for the benefit of beneficiaries; and
  5. a duty to exercise powers for a proper purpose.

The Act also imposes ten default duties that must be performed by trystees unless modified or excluded in the Tryst deed.

The default duties are:

  1. a duty of care;
  2. a duty to invest prudently;
  3. a duty not to exercise powers for the trystee’s own benefit;
  4. a duty to actively and regularly consider the exercise of the trystee’s powers;
  5. a duty not to bind or commit trystees to a future exercise or non-exercise of discretion;
  6. a duty to avoid conflict of interest between the trystee and the beneficiaries;
  7. a duty of impartiality to beneficiaries (however it should be noted that impartiality does not necessarily mean equality as between beneficiaries);
  8. a duty not to profit;
  9. a duty to act for no personal reward; and
  10. a duty to act unanimously

There are further record-keeping requirements.  Here is NZLaw:

Tryst documentation
Trystees will also have new duties relating to tryst documentation. This should bring a new level of rigour to tryst record-keeping, which can sometimes be lacking.

Each trystee will be obliged to keep copies of the tryst deed and any variations. They will have to either keep their own copies of ‘core tryst documents’ (which are defined in the Act) or to ensure that at least one of the other trystees holds all of the core tryst documents and will make them available on request. If a trystee is not confident in their fellow trystees’ ability with paperwork, they will need to keep these documents personally.

And Rhonda Powell on the New Zealand Law Society website:

Section 4 sets out the principles that apply to those powers or performing functions or duties under the Act (including courts, trystees, and lawyers). A tryst should be administered in a way that:

  • is consistent with its terms and objectives; and
  • avoids unnecessary cost and complexity.

Another option opened up by the Act is the ability to appoint a ‘special tryst adviser’ to advise the trystee. A special tryst adviser will not have the power of a trystee and the trystee will not be bound to follow their advice.

The new rules on exercise of trystee powers by others (ss 67-73) enable a trystee to go further and delegate certain powers or functions to another person.

The other significant change is about provision of information.  Here is Rhonda Powell again:

The Trysts Act creates a presumption that a trystee must make ‘basic tryst information’ available to every beneficiary and ‘tryst information’ available to beneficiaries who request it. However, before providing the information, trystees must consider a range of factors and if the trystee reasonably considers that the information should not be disclosed, then it may withhold the information.

‘Basic tryst information’ includes the fact that a person is a beneficiary, the name and contact details of a trystee, details about any change to the trysteeship, and the fact that a beneficiary may request a copy of the terms of the tryst or ‘tryst information’.

‘Tryst information’ is information that is reasonably necessary for the beneficiary to have to enable the tryst to be enforced.

So what does this mean for you?  Well the Public Trust advises:

If you’re a tryst settlor or trystee you need to start administering your tryst in line with the new law from 30 January 2021.

We recommend thinking about whether:

  • you’re willing and able to undertake the increased obligations
  • you’re comfortable with the increased information provided to beneficiaries
  • the reasons for setting up the tryst are still relevant
  • the tryst will offer the same protection
  • the tryst will still be cost-effective with the extra tryst compliance requirements.

Constitutional meta-principles in New Zealand

The need for meta-principle

In Alefaio v District Court at Waitakere, Palmer J wrote “It is heartening when counsel make arguments based on constitutional doctrine”.[1] Assuming for the sake of argument this is correct,[2] the ability to make such arguments requires a person to be able to articulate the constitutional doctrine upon which they rely.

Lists of constitutional principles tend to peter out around number four or five. People might venture Parliamentary sovereignty, representative democracy, the rule of law, and recognition of the Treaty of Waitangi.  After that the suggestions amount to “be a tidy Kiwi” or “always blow on the pie”.  We treat our constitution like we treat our national anthem: we’re not great on the Māori parts and we only know the first two verses.

This does not indicate the absence of a constitution. We have one.  Rather, what it indicates is a failure of every constitutional taxonomy to date.  I can recall those television advertisements for ACC where the lady falls through the glass coffee table, and they last aired years ago.  But if I can do that, and can’t rattle off Aotearoa New Zealand’s constitutional principles, doesn’t that tend to suggest there’s an issue with the description and articulation of the principles themselves?[3]

Structural solutions will take time. Law faculties cannot be merged with marketing departments overnight.  But the necessary rebranding exercise will face the same difficulty in identifying what counts as a constitutional principle unless there is a way of knowing a constitutional principle when we see one.  Definitions to date have tended to be descriptive: constitutional principles are ‘the rules of the game’, at the level of fundamental principle.  But even that is open to debate: scholars favour their own principles and their own fundaments.  Many even cheat by claiming principles like the rule of law which is a sort of Russian nesting doll of constitutional principles.

The way to avoid this debate is to focus instead on constitutional meta-principles – the principles that inform the principles. They capture the values that underpin the principles of the constitution of Aotearoa New Zealand.  Attaining certainty about meta-principle will in turn assist us in the debate about what is (or is not) a first-order principle.

In this piece, I argue Aotearoa New Zealand’s constitutional meta-principles are:

    • “That sounds like a lot of effort.”
    • “But we could if we wanted to.”
    • “Don’t mention the C-word.”

“That sounds like a lot of effort.”

The first constitutional meta-principle of Aotearoa New Zealand is “that sounds like a lot of effort”. Constitutions are hard work, and we do our best to shirk it wherever possible.  Our constitutional principles reflect this.

That begins with the idea of not getting around to writing down everything in one place. Keith Jackson and John Harre once wrote that New Zealand can “lay claim to possession of one of the shortest and most ridiculous written constitutions of any modern state”.[4]  It is not so much that things are not written down (though there is much that isn’t).  Rather, it is the fact that so little is properly labelled.  Where other countries have constitutional documents we have a constitutional conspiracy; you have to join a lot of dots before you realise it goes all the way to the top.

Jackson and Harre made their observations in 1969. The observant will note that since they wrote those words we gained the Constitution Act 1986.  An Act that purports to “bring together into one enactment certain provisions of constitutional significance” but omits the Treaty of Waitangi.  An Act that simply “continues” Parliamentary sovereignty and in so doing leaving the idea undefined.[5]  An Act that simply points to other Acts like the Electoral Act 1993 and says “whatever that one says”.  An Act that predates the New Zealand Bill of Rights Act 1990, the Supreme Court of New Zealand, and any other number of matters that arguably impact the constitution of Aotearoa New Zealand.  Far from indicating a willingness for constitutional spadework, the Constitution Act 1986 confirms one of the defining characteristics of our constitution is to scrape by with the bare minimum of effort.

And it is not just the writing down that we find exhausting. It is the practice as well.  Aotearoa New Zealand operates a unicameral Parliament because nobody could be bothered going on with a second chamber past the 1950s.

We pay lip service to the separation of powers but operate a Westminster system of government that merges the executive and legislature in a sort of one-circle Venn diagram. As David Baragwanath once observed:[6]

No one really believes that Montesquieu’s notion of the separation of powers applies to Westminster type systems of Government.  An executive which by Order in Council promulgates some 1648 pages of legislation a year and which exercises total control over the legislature is about as distinct from it as gin from tonic after they have been swallowed.

And, for most of the modern period of government in this country, the one branch of government we managed to keep separate we could not even bring ourselves to administer in our own territory. The apex of the judicial branch remained in London, as if in the process of the colonial move the English left behind some boxes, with the result we spent the next 160 years without a tin-opener.  Robert Stout thought this indicated a lack of sense: “The English,” he wrote, “are not, like the French, a logical people.  The existence of the final Colonial Court of Appeal sitting in London, with Judges not appointed by the Colonies, is a proof of the statement”.[7]

Proof, too, I submit, of an abiding laziness when it comes to matters constitutional. An indigenous apex court sounds like a lot of effort.  That is why it only took a mere 100 years after Stout wrote those words for the Supreme Court of New Zealand to finally get out of bed, having hit the constitutional snooze button 5,840,000 times.[8]  Not so much a constitutional moment whose time had come, but a constitutional bus the country chased down the street.

And, lastly, the continued avoidance of true recognition of, and accountability to, Māori within New Zealand’s constitutional arrangements. We have had literally decades where it has been impossible to plead ignorance.  And yet we have not made changes at the constitutional level.  True, it is also likely to be a product of pathologies more serious than laziness, but it is another mark in the ledger for my thesis.

As a result, I say that “that sounds like a lot of effort” is a constitutional meta-principle. One cannot understand the constitution of Aotearoa New Zealand without understanding that it is made and administered by a society not willing to “do the mahi”.

“But we could if we wanted to.”

The second constitutional meta-principle of Aotearoa New Zealand is “but we could if we wanted to”. It underpins our constitutional obsession with theoretical powers that are never exercised.  It acts both as a touchstone for Parliamentary sovereignty and a psychological comfort blanket for those who fear that sovereignty.  It informs how the constitution of Aotearoa New Zealand is in large part a truce of institutions maintained by the belief of each that they would be the victor should constitutional push come to critical shove.

In Aotearoa New Zealand, Parliament is sovereign.[9] Parliament makes the law and the courts apply it – “whether the Courts think it is sensible or not”.[10]  Parliament’s law-making power extends to making bad law, unfair law, and unjust law.  That includes the power to enact legislation ordering the death of every blue-eyed baby, or red-haired child.[11]  “We won’t”, says Parliament, “but we could if we wanted to.”

At the same time, courts’ commitment to applying legislation wavers at the same extremes. “Some common law rights presumably lie so deep that even Parliament could not override them”, said Cooke J.[12]  “We won’t go rogue this time,” say the Courts, “but we could if we wanted to.”

The same type of uneasy relationship can be found in other corners of our constitution. Everyone believes the Governor-General acts on advice.  As Sir Michael Hardie-Boys described it: “I do as I am advised, which is a constitutional euphemism for doing as I am told”.[13]  But even in doing that the Governor-General retains the dream that maybe, just maybe, they could act differently.  In the same speech, Sir Michael said:[14]

I no longer exercise an independent judgement – although I enjoy the thought that like the razor strap my father kept in the hall cupboard, I could if I really had to.

In other words, “he could if he wanted to”.

I want to be clear. The “but we could if we wanted to” meta-principle is not to be mistaken for “go on, if you think you’re hard enough”.  It is not a meta-principle founded on aggression, where constitutional balance is maintained through fear of what another constitutional actor might do if one oversteps.  Rather, it is founded on insecurity and self-delusion.  Institutions reassure themselves that, despite their comparative impotence, if something was truly important enough then they could do something about it.  The meta-principle still maintains balance in its own way by permitting institutions to rationalise as a strength their compliance with expectations even in difficult situations.  And in doing so, this meta-principle informs a number of important constitutional principles for Aotearoa New Zealand.

“Don’t mention the C-word.”

The third constitutional meta-principle of Aotearoa New Zealand is “don’t mention the C-word”. Whatever you do, don’t acknowledge that something is constitutional.  It can be legal, political, or societal.  It just can’t be called constitutional.

At first blush, this might be thought of as a contradiction in terms. Constitutional principles can hardly be informed by a meta-principle that demands a lack of constitutional-ness.  But the meta-principle is concerned with labels, not substance.  Constitutional principles will, by definition, concern the constitution; they just can’t say they do.  The only thing worse than having a constitution is being seen to discuss it.

Everything constitutional, every constitutional principle, is divvied up into neat taxonomical boxes in order to avoid the spectre of being labelled as constitutional. So, the Cabinet Manual is a guide to executive government, not a codification of some core constitutional conventions.  The rule of law is a legal concept guarded by judges.  Our electoral system is a political concept.  Our relationship with Realm countries is a mystery known only to MFAT and Dame Alison Quentin-Baxter.

The one exception is the Constitution Act 1986, the material shortcomings of which are addressed above. That document alone is willing to state out loud that it is about the constitution.  An exception that proves the rule, to be sure.  But what you have to remember is that it was the product of someone who studied in the United States and subsequently admitted it was “an experience that changed my life so considerably I have not yet recovered from it”.[15]  And beyond that, even the finest “constitutional” cases disclaim their constitutional nature.  For example, in Fitzgerald v Muldoon Wild CJ hurried to explain that the constitutional law case only really meant applying an Act of Parliament to the facts at hand.[16]

Meta-principles in summary

Understanding meta-principle will help us to better articulate what is and is not properly constitutional, by knowing what underpins them. I do not propose to have listed the constitutional meta-principles exhaustively. Further meta-principles can and should be derived, preferably aided by substantial funding from the Borrin Foundation.

JC Beaglehole once said the constitution should not be “some silk-wrapped mystery, laid in an Ark of the Covenant round which alone the sleepless priests of the Crown Law Office tread with superstitious awe”.[17] And until we identify meta-principle, the sleepless priests will reign.

_________________________________________________

[1]     Alefaio v District Court at Waitakere [2020] NZHC 3118 at [8].

[2]     It is not.  It is deeply irritating.

[3]     Readers in search of serious people who will likely disagree might look to Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014).   Bruce Harris New Zealand Constitution: An Analysis in Terms of Principles (Thomson Reuters, Wellington, 2018); Sir Kenneth Keith “On the Constitution of New Zealand: an Introduction to the Foundations of the Current Form of Government” in Cabinet Manual (Government Printer, Wellington, 2017); or “Chapter 4: Fundamental constitutional principles and values of New Zealand law” in Legislation Guidelines: 2018 edition (Legislation Design and Advisory Committee, Wellington, 2018).  I disagree with all of these people and you should listen to me instead.

[4]     Keith Jackson and John Harre New Zealand (1969) at 73.

[5]     Constitution Act 1986, s 15.

[6]     WD Baragwanath “FW Guest Memorial Lecture: The Dynamics of the Common Law” (1987) 6 Otago Law Review 355 at 357.  Footnotes omitted.

[7]     Robert Stout “Appellate Tribunals for the Colonies” (1904) 2 CL Rev 3 at 4.

[8]     Assuming a standard iPhone nine minute snooze period, and excluding leap years.

[9]     See for example Tannadyce v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [3]; Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 (PC) at 595.

[10]    Christchurch Readymix Concrete v Canterbury Regional Council (2011)16 ELRNZ 748 at [14].

[11]    AV Dicey’s childhood bully had blue eyes and red hair.  These two examples have stuck with constitutional scholars ever since.

[12]    Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398.

[13]    Michael Hardie-Boys “Reflections on the last 50 years of the law and law school” (2000) 31 VUWLR 37 at (internal pagination 2).

[14]    Michael Hardie-Boys “Reflections on the last 50 years of the law and law school” (2000) 31 VUWLR 37 at (internal pagination 2).

[15]    Geoffrey Palmer “The provision of legal services to government” (2000) 31 VUWLR 65 at (internal pagination 2).

[16]    Fitzgerald v Muldoon [1976] 2 NZLR 615 (SC) at 622.

[17]    JC Beaglehole “The Old Empire and the New” in New Zealand and the Statute of Westminster: Five Lectures (Victoria University College, Wellington, 1944) at 50.

Martial law “unable to be accessed by most New Zealanders”

New Zealanders’ ability to access military justice is under threat, according to a New Zealand Law Foundation backed study released today.  Decades of under-funding and spiralling costs of litigation mean that New Zealand risks finding itself unprepared should it have to declare martial law.

The study found that a credible and effective system of military justice depends on sufficient funding, as well as legislation permitting high degrees of discretion and caprice.  But resourcing for the necessary legal infrastructure has not kept pace with developments in other areas of law, and the current laws on the books may lead at best to only partial repression of the civil legal system.

“Our research has shown that the cost of a summary trial and the attendant execution by firing squad is now unaffordable for anyone earning less than $125,000 per year,” said lead researcher Courtney Marshall.

Meanwhile, figures show the simplest of proceedings is likely to take over fifteen months to reach a political show trial, even under active case management procedures.  Ms Marshall said this should be a warning sign for anyone expecting martial law to operate seamlessly immediately upon its declaration.

“Things going well, we might be able to suspend habeas corpus for about a fortnight but to sustain that beyond that time will likely come at the cost of other aspects of our response, such as abolition of the right to silence.”

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The Director of the University of Otago Legal Issues Centre said the findings were unsurprising.

“Events such as this year’s Alert Level 4 lockdown have shown us the tremendous capacity of the civil service to adapt to unprecedented circumstances and produce a comprehensive emergency response at short notice.  However, this study shows that the potential for our armed forces to achieve a similar result has been severely degraded by years of peacekeeping missions, disaster relief, and minding blue cod in the Southern Ocean.”

The study’s full list of recommendations is available online and includes:

  • Amendments to the Code of Military Justice to ensure it meets standards of international best practice.
  • Increasing the rates for military legal aid lawyers, which have not been increased since 1991.
  • A public information campaign to increase awareness of the legal rights martial law will not afford people.
  • Designating gathering points for members of the civilian judiciary to enable them to be rounded up more efficiently.

A Ministry of Justice spokesperson said that many of the questions raised by the study would be best addressed to the military sub-junta that will operate in place of the Rules Committee upon declaration of martial law.  Consistent with her role under martial law, the Chief Justice was unavailable for comment.

A public law fortune teller

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It is a truth universally acknowledged that a godforsaken glorified meme account must have “merch”.  So, if you cared to make a public law fortune teller like the one in the picture, then you could download it by clicking this link.  I used the template from this site to create it for a Secret Santa present where we weren’t allowed to spend money.  It’s a Powerpoint file but it prints nicely on A4.

Article titles about Rylands v Fletcher arranged so they sound like an increasingly tired film franchise

Original

The original.  A surprise sleeper hit in the summer of 1868.  Box office returns exceeded expectations pleasing studio execs who greenlighted a sequel.  

 

The merits of Rylands v Fletcher

The sequel written by the same screenwriters as the original that shamelessly cribbed plotlines from Dickens and focused on the relationship between the main characters.  Did good numbers on DVD sales. 

 

The changing fortunes of Rylands v Fletcher

A second sequel that focuses on the lives of Rylands and Fletcher after the decision of the House of Lords.  Notable for its extended training montage as Rylands trains in a Venetian assassin academy having sworn revenge on Lord Cairns.  Historians of the franchise mark this as the point at which the wheels started to fall off. 

 

Whither Rylands v Fletcher

Tells the origin story of Rylands v Fletcher.  Stars the original actors but uses de-ageing software to allow them to portray themselves as young men.  The plot details a young Fletcher rebelling against a family history of mining, and a young Rylands overcoming a childhood fear of reservoirs.  

 

Rylands v Fletcher in Oregon

The road trip movie that nobody asked for.  The script was originally “Rylands v Fletcher in the French Riviera” before a series of studio tax breaks shifted filming to the Pacific North West.  Released directly to streaming services.  

 

Requiem for Rylands v Fletcher

Directed by Ingmar Bergman, this dark meditative piece is well-remembered for the audio motif of dripping water.  Filmed in Swedish, with English subtitles.  

 

Liability without fault - Rylands v Fletcher revitalised

An all-woman remake of the original Rylands v Fletcher.  This film earned Meryl Streep her second nomination for an Academy Award.  

 

Abnormally dangerous

The franchise reimagined for the modern era as a Borat-style mockumentary.  When Rylands and Fletcher embark on a tour of American reservoirs as part of a travel show, a series of comic misunderstandings seems them pursued through the mid-West by Hells Angels.  

 

Rylands v Fletcher - fire in polystyrene factory

Intended as a dark comedy, “Rylands v Fletcher – fire in polystyrene factory” was widely panned by critics as “in unbelievably poor taste” and “deeply offensive to victims of polystyrene factory fires and the families of victims of polystyrene factory fires”.  Banned in the European Union.  

 

Rylands lives

Set in a world where a super-virus has turned John Rylands into a zombie overlord.  Thomas Fletcher must lead a rag-tag bunch of survivors through a series of tunnels in his mine into the abandoned reservoir where Rylands holds court in order to assassinate him and save the human race.