On sparrows

My workplace was already dealing with a public health crisis when Covid-19 began its acceleration here.  A sparrow had made its way into our fancy glass atrium and had taken up residence.  It’s been there four weeks now, living off crumbs of Huntley and Palmers set out as bait to lure it towards a cage it otherwise ignores.  Its leisure activities mainly seem to involve shitting over our furniture.  Most recently, some enterprising solicitor propped up an upside down cardboard file box on a binding comb.  String tied to the binding comb could be yanked to make the box pounce.  A sort of Wile E Coyote solution designed by desperate lawyers.

Now, almost all of us have been sent to work from home.  I assume the sparrow is still there.  Defiant.

Me, I’m following orders.  It seems the only responsible thing to do.  Obtaining permission to return to the office for a day now requires an originating application and supporting affidavit.  Presumably when we reach category 4 shortly it will be all but impossible.

In a time of a large scale public health crisis, the market for nonsense should be small.  I am loathe to contribute to the supply.  Somehow, tweeting that barristers wigs are to be lengthened to mid-arm (coiffing to your elbow) doesn’t seem like the order of the day.  (Besides, all the easy jokes have been taken.  Clean hands; we get it.  Call me when there is something original like the QC seating priority being reversed so that QCs are entitled to sit on the seat *furthest* from the bench, or all opt-out representative actions are changed back to opt-in.)

I was this close – *this* *close* – to writing a whole thing about the Chief Justice calling on all practitioners to stop citing cases that are over 70 years old.  But with the announcements today it all seems pretty naive.

It would be nice if we could carry on as normal.  I would like it even more if we could  romanticise the practise of law to a level on par with nursing or supermarket shelf stacking.  (Alas, I gave up my early career as checkout chap at Mosgiel New World to practice law; a choice which I’ve long suspected and now confirmed to be a backwards step.)  Law will be essential to achieve a lot of good in a difficult time.  The Chief Justice is right that the courts must remain open even at category 4.  But for each of us, the ability to do some good, even a lot of good, can’t be mistaken for the idea that everything we do is good.  The situation calls for an acceptance of limits and to follow public health advice, which for now is to limit social contact as much as possible.

Getting admitted as a barrister and solicitor of the High Court of New Zealand means that, when faced with crisis, we all have to leap to our feet valiantly and proclaim things like “Even in times of war, the laws do not fall silent”.  Well, it turns out that in a pandemic, the laws do not fall silent but they do have a scratchy throat.  We can all do our jobs while taking sensible precautions.

That will be tough on all the egotists among us, me included.  It will be tough on counsel having to appear by telephone, who lose the ability to share that very special locked-eyes “I’ve no fucking idea what he’s on about either” look with the judge while opposing counsel is speaking.  It will be tough on judges who have to listen to my oral submissions delivered entirely in “telephone voice”.  It will be tough on all of us forced to confront the idea that the judgment we’re reading may have been written by a judge at home and not wearing pants.

It’s not my place to say anything profound.  And I don’t think anyone should necessarily have a sense of humour about something that is all but certain to lead to deaths.  It’s also not my place to deliver public health advice.  But it occurs to me we have two options.  We can be sensible lawyers who follow official advice while upholding our oaths, or we can be sparrows shitting over everything.

See you all when this is over.

Latest Supreme Court decision bad news for Chief Justice

The Chief Justice’s last, best hope to avoid having to host a dinner with the profession has been dashed.  Options to get out of hosting an ADLS dinner at the Northern Club on 13 March 2020 are now severely limited following the Supreme Court’s reasons in Minister of Justice v Kim [2020] NZSC 18.

Today’s decision (from a panel that did not include the Chief Justice) held that extrajudicial engagements do not, in and of themselves, affect a judge’s ability to sit.  That had the effect of confirming that there is no legal reason that would prevent the Chief Justice having to pretend to enjoy socialising with 200 people whose idea of a good time is dinner at the Northern Club.

The Supreme Court’s decision was limited to whether appointment under the Inquiries Act 2013 affects judicial independence in the context of William Young J’s appointment to the Royal Commission of Inquiry into the Attack on the Christchurch Mosques on 15 March 2019 and Arnold J’s appointment to the Government Inquiry into Operation Burnham and Related Matters.  The decision contained no helpful obiter observations about whether punishing public dinners on a Friday night might also affect judicial independence, despite “[b]oth the Senior Courts Act and the Inquiries Act [being] silent on the point” as well (Kim at [30]).   Nor did it make any comment on the latent injustice of having to suffer through these sorts of dinners in arm’s reach of sobriety for the sake of public perception.

The Supreme Court confirmed the Saxmere test for apparent bias continues to apply, however bloodstock agents confirmed that, due to new AML regulations, a purchase of a share in a racehorse was unlikely to be able to be effected before 6.30pm on Friday 13 March 2020.  Efforts by clerks late Thursday to locate an extant application for leave to appeal to the Supreme Court that somehow involved either the Northern Club or ADLS proved unsuccessful also.

The Chief Justice’s speech for the dinner currently consists of an entry in her phone’s Notes app that records it wasn’t until her fourth year of being a partner in a law firm that the Northern Club started admitting women as members.

Akuhata v R [2020] NZCA 19 – appellate consequences of a failure to engage s 27 of the Sentencing Act 2002 at first instance

Akuhata v R [2020] NZCA 19 contains a reasonably rare dissent in the Court of Appeal.  What is an appellate court to do if there has been no resort to s 27 of the Sentencing Act 2002 in a sentencing decision?

The particular facts of Akuhata mean both the majority and minority can suggest only partial answers.  That means the issue will need to be confronted again, later.  But, for now, different judges point in different directions and speak to a wider debate about the significance of s 27.

Mr Akuhata pleaded guilty to murder.  He was sentenced to life imprisonment with a minimum non-parole period of 15 years. At his sentencing his counsel did not seek to use s 27(1) of the Sentencing Act 2002.  Section 27(1) provides:

(1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—

(a) the personal, family, whanau, community, and cultural background of the offender:

(b) the way in which that background may have related to the commission of the offence:

(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

To save scrolling back to look at this section later, note that the section is permissive.  An offender “may” request the Court.

A Court “must” give effect to any request made, unless the Court is satisfied of “special reasons” not to (Sentencing Act 2002, s 27(2)).

But s 27(1) doesn’t have to be triggered only by an offender.  The Court has the ability to be proactive.  Section 27(5) provides:

(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1).

Again, the Court “may” do this.  So s 27 has two ways to be engaged.  Both of them permissive.

At his sentencing, the judge did not make a suggestion under s 27(5).

So Mr Akuhata was sentenced without recourse to s 27.  No one spoke to the matters listed in s 27(1) (nor, as is more common, was there any s 27 “report”).

Two years later, Mr Akuhata applied for leave to appeal his sentence out of time. One of his appeal grounds was the fact that he was sentenced without recourse to s 27.  The majority recorded the appeal ground as being aimed at the fact the sentencing judge had not made a suggestion under s 27(5), rather than a failure of counsel to advance a request under s 27(1) (at [147]-[149]).

In his application for leave to appeal out of time, Mr Akuhata did not provide a s 27 report or other information that he said should have (but was not) taken into account.  The Court of Appeal knew Mr Akuhata was a Māori man of Ngā Puhi descent who lived in Northland.  And it had psychiatric and psychological reports before it as a result of a conviction appeal that Mr Akuhata also advanced.  But beyond that it had no further information supporting the application for leave to appeal the sentence out of time.

Mr Akuhata could establish clearly that an avenue which *might* have provided a discount had not been pursued.  But he could only speculate whether it could have or would have provided a discount.

How to treat such a situation?  The judges split.  The majority (Wild and Katz JJ) declined the application for leave to appeal out of time.  The minority (Whata J) would have permitted Mr Akuhata to obtain and file material he wanted considered under s 27, before the Court determined the application for leave to appeal out of time.

 

The majority view

Writing for the majority, Wild J began by stating that “a failure to engage s 27 could provide a proper basis to reconsider sentence, in an appropriate case” (at [151]).  That has to be right.  It is the same with any sentencing factor that is overlooked at first instance, regardless of whether it is overlooked unknowingly or even negligently.  The whole point of appeals is to fix error.

Sentence appeals require an appellant to satisfy an appellate court that an error exists, of a type that meant the end sentence was manifestly excessive.  To do that, an appellant generally needs to be able to point to evidence (excluding things purely internal to the decision under appeal like arithmetical error).

A failure to engage s 27 leaves the Court of Appeal with a known unknown.  But establishing a known unknown isn’t enough on a sentence appeal: “the appellant must provide enough information to satisfy the Court that the failure to engage the s 27 process has resulted in the overlooking of matters that may have impacted on sentence” (at [151]).

The majority then pivoted to the facts of the case.  In the majority’s view “[n]one of the many medical reports to the High Court, nor the pre-sentence report, contains any suggestion that Mr Akuhata’s criminal offending had its genesis in social deprivation or in any other matter that might have come to the fore in material adduced under s 27” (at [153]).  The majority was careful to state that it did not suggest the reports could take the place of a s 27 report, but rather that their extensive canvassing of Mr Akuhata’s history may have explained why neither trial counsel nor the sentencing judge turned their minds to s 27 (at [156]).

Finally, the majority noted the overarching question was whether the life sentence with a 15 year minimum non-parole period could be said to be manifestly excessive.  It held that it could not be said to be manifestly excessive.  Life imprisonment was mandatory,  The only discount was to the minimum non-parole period of 17 years.  A fifteen year MPI “appropriately reflected the discount that was properly available to Mr Akuhata for his guilty plea” (at [157]).

This last point seems to beg the question, though.  Almost everyone would agree that the sentence actually imposed was correct on the information known to the sentencing judge (including the guilty plea discount).  Mr Akuhata’s argument was that there was information (or might be information) not known to the sentencing judge.  The majority’s reliance on simply the guilty plea discount doesn’t grapple with that at all.

 

The minority view

Writing in dissent, Whata J explained his reasons for why he would have permitted Mr Akuhata to obtain and file the information he said should have been considered under s 27.  The minority view was informed by the importance of s 27 as set out in Zhang v R [2019] NZCA 507 at [159]-[162].  Whata J humbly didn’t cite Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 but the majority pointed out that he very well could have.

Whata J placed emphasis on the Court of Appeal’s reference to a “right” to address the Court under s 27.  His Honour’s reasoning was that:

[160] The full Court’s reference to an offender’s “right” to address the court emphasises the importance of the s 27 process to the sentencing. For my part then, the failure to engage s 27 may provide a proper basis for reconsideration of sentence by this Court on appeal. It also evident that [trial counsel for Mr Akuhata] did not request [the sentencing judge] pursuant to s 27(1), to hear from any person or persons and [the sentencing judge] did not suggest that it would assist her to hear from such persons. It seems to me then that there is a real issue to be considered on appeal, namely whether the sentencing process was procedurally and substantively unfair to Mr Akuhata because of the apparent omission to engage s 27.

[161] I acknowledge that, unhelpfully, we do not know what material the exercise of power might have produced. I also acknowledge that the information available to the Court suggests that the omission may not be material to the result for the reasons expressed by Wild and Katz JJ at [157]. And it counts strongly against Mr Akuhata that he has not already identified the s 27 information he says was and is relevant to his sentence. But given the procedural as well as substantive significance of the s 27 process to sentencing, as affirmed by the full Court in Zhang, the added burden to the Crown and to the Court of affording Mr Akuhata the opportunity to identify the relevant s 27 matters is in my view justified.

In other words, you haven’t done this properly.  You should have done it better and been more organised.  But s 27 has such “procedural as well as substantive significance” that you may have a further chance to obtain the information.  If something as vital as the s 27 process has gone wrong (in this case, that it has not been engaged at all), then that creates a risk of unfairness that an appellate court cannot treat as probably not leading to error.

 

Thoughts

First, it’s important to recognise that the members of the Court are not that far apart at all.  The majority would grant (at least some) sentence appeals based on a failure to have recourse to s 27.  You just need to show them that the failure had a significance.  And the minority is not saying it would grant appeals on a speculative basis.  All it would do is give greater freedom to try to obtain the necessary information.  If those efforts do not result in persuasive evidence then your appeal may well be dismissed.

Second, the split arose on unusual facts but perhaps not practically rare facts.  Best practice if you are arguing a sentence appeal on the grounds that factor X warranted a discount will be to marshal evidence of factor X beforehand.  That is the case whether it is an appeal in time or out of time.  One would hope that there are few appeals brought on the basis of “I don’t know, what about this factor, there might be something there, how about we find out?”.  The same issue as in Akuhata v R has happened before, albeit the issue of obtaining a s 27 report did not assume significance in the decision: see Tuuta v R [2019] NZHC 2788 at [13] and [19].

But when it comes to s 27 reports there could well be real world difficulties with best practice.  Many legally aided clients will have to convince the legal aid authorities to spring for a s 27 report.  The ability to privately fund a report will be beyond many, which is not ideal considering the cohort who can’t afford a report is likely to overlap substantially with the cohort who will benefit most from them.  But if you can’t get the legal aid funding for a report for a well out of time sentence appeal, then a more generous approach like Whata J’s might be the way to break that impasse.  An appellate court saying it will defer determination of an appeal until a report is prepared could well be sufficient carrot/stick to shake free legal aid funding for a report.

(Of course, all of that assumes that one’s approach to s 27 is that of formal reports.  The section isn’t worded so narrowly: the court can hear from “any person”.  Better recognition of this fact, particularly by the courts, could help reduce one of the barriers to effective use of s 27: the stubborn insistence that everything has to be in a report written by an “objective” expert.  I write that presently as someone who fears he is one of those stubborn insisters.)

Third, the split decision perhaps symbolises nothing more or less than the courts continue to feel their way with s 27.  Saying s 27 is in vogue wrongly obscures the fact that it has taken far too long to start using it to its full potential.  But its use has been mainstreamed and supercharged by Heta and Zhang.  It is now, rightly, central to sentencing exercises.  And part of that is working out where the limits are and where it will sit in the pantheon of personal discounts for sentencing.

I venture that the majority’s approach applies orthodox “fresh evidence” and “material error” lenses to appeals involving (the absence of) s 27 reports.  And I venture that the minority approach treats s 27 issues as having a substantive significance that means they should be treated differently beyond other personal mitigating factors.

Consider a defendant sentenced for fraud on the understanding that they had not paid reparation at the time of sentencing.  They apply for leave to appeal out of time on the basis that the judge was wrong to find they had not paid reparation (which would have otherwise earned them a sentencing discount).  But they do not present any evidence that they in fact did pay reparation.  It would be unusual if the Court were to permit an appellant in that situation a still further chance to go to get the evidence.  The Court would likely say it should be presented at the time of the appeal and without it it is too speculative to permit an appeal out of time (let alone allow the appeal).  That is consistent with the majority’s approach in Akuhata.  Does the minority’s (and Zhang v R‘s) “rights” reasoning help?  Not really perhaps.  When it comes to reparation an offender also has a “right” to have that taken into account: s 10 of the Sentencing Act 2002 affords just as much right as does s 27(2).  So it has to be something else about s 27 that warrants different treatment.  The task is to articulate what, and to articulate it in a way that can be justified on the statutory language.  In the few paragraphs of Akuhata v R, neither the majority nor the minority accomplish that task persuasively.

Both approaches – the majority and the minority – are choices about how s 27 will be treated and what importance we afford to it.  “Orthodox” is not meant as an endorsement, simply an observation.  We need to decide what role s 27 will play and whether the “procedural as well as substantive significance” it holds will warrant different treatment on appeal in comparison to other personal mitigating factors.  I don’t know the answer to that.  Nor am I the right person to decide.  The way things like s 27 help us not to sentence “caricatures”, though, speak to the importance of ensuring the proper use of the section both at first instance and on appeal.  And dissents like that in Akuhata v R are important in ensuring the judiciary continue to confront the issue.

 

The New Zealand senior court hierarchy if seniority was determined by surname Scrabble score

Yet another important contribution to New Zealand legal scholarship.

While the title is self-explanatory, please consider the following important judgement calls made in the compilation of this list.

It’s surname only.  Their Honours Ellen France and Simon France, William Young and Paul Davison JJ don’t get bonus points from their first names.  Nice try!

There are presently six Supreme Court judges, but sixth place is split three ways, so I am running a slim-line five member Supreme Court, and letting sixth place share the Presidency of the Court of Appeal.

Where there is a tie, they are ranked by present seniority.

The result is a Supreme Court that maintains its gender balance (and would still do so if the sixth place candidates were included), and the Court of Appeal has significantly more female judges.  So, if you are an Attorney-General interested in my engaging me to consult on judicial appointments, please DM me on Twitter.

 

Supreme Court

The Right Honourable Dame Susan Glazebrook, Chief Justice (26)

The Honourable Justice Fitzgerald (24)

The Honourable Justice Churchman (21)

The Honourable Justice van Bohemen (20)

The Honourable Justice Winkelmann (19)

 

Court of Appeal

The Honourable Justice Clifford (17)

The Honourable Justice Katz (17)

The Honourable Justice Dunningham (17)

The Honourable Justice Duffy (15)

The Honourable Justice Woolford (15)

The Honourable Justice French (14)

The Honourable Justice Jagose (14)

The Honourable Justice Williams (13)

The Honourable Justice Courtney (13)

The Honourable Justice Walker (13)

 

High Court

The Honourable Justice Edwards (12)

The Honourable Justice Ellen France (11)

The Honourable Justice Goddard (11)

The Honourable Justice Venning (11)

The Honourable Justice Simon France (11)

The Honourable Justice Wylie (11)

The Honourable Justice Brewer (11)

The Honourable Justice Whata (11)

The Honourable Justice Thomas (11)

The Honourable Justice Clark (11)

The Honourable Justice Davison (11)

The Honourable Justice Powell (11)

The Honourable Justice Cooke (11)

The Honourable Justice Gwyn (11)

The Honourable Justice Brown (10)

The Honourable Justice Cooper (10)

The Honourable Justice Gilbert (10)

The Honourable Justice Palmer (10)

The Honourable Justice William Young (9)

The Honourable Justice Collins (9)

The Honourable Justice Dobson (9)

The Honourable Justice Gendall (9)

The Honourable Justice Mander (9)

The Honourable Justice Hinton (9)

The Honourable Justice Downs (9)

The Honourable Justice Osborne (9)

The Honourable Justice Miller (8)

The Honourable Justice Mallon (8)

The Honourable Justice Peters (8)

The Honourable Justice Gordon (8)

The Honourable Justice Grice (8)

The Honourable Justice Doogue (8)

The Honourable Justice O’Regan (7)

The Honourable Justice Kós (7)

The Honourable Justice Moore (7)

The Honourable Justice Muir (6)

The Honourable Justice Nation (6)

The Honourable Justice Cull (6)

The Honourable Justice Gault (6)

The Honourable Justice Lang (5)

The Honourable Justice Ellis (5)

 

A template memorandum for a procedural hearing

Select from the options below.  Delete inappropriate options.  Apply your own standard formatting.

 

Introduction

May it please the:

  1. Authority.
  2. Tribunal.
  3. Court (if Court, specify District/High/Appeal/Supreme/Kangaroo).

 

Despite the direction to do so, we have not filed a joint memorandum because:

  1. We did not hear from the other side.
  2. We heard from the other side and, frankly, what we heard disturbed and alarmed us.

 

This memorandum is filed late because:

  1. We are ignorant that “two working days in advance” means two clear working days.
  2. We are merely conveniently overlooking the fact that “two working days in advance” means two clear working days.

 

Substantive issues

Discovery

There is presently:

  1. Not enough.
  2. Too much.

The other side has been:

  1. Miserly.
  2. Undiscerning.

We need:

  1. Lots more.
  2. Just the smoking gun emails.

 

Pleadings

The other side’s pleadings are:

  1. Prolix
  2. Scattershot
  3. Haphazard
  4. An overpacked Cook’s Tour of judicial review.

We note in particular that the second cause of action/ground of appeal seems:

  1. Doubtful on the basis of relevant authority.
  2. Not to comply with the requirements when pleading fraud.
  3. Demonstrative of only passing familiarity with the High Court Rules.

 

Other matters

Despite the other side’s seemingly unanswerable points about our claim, at this point we’re just looking to get past:

  1. Strike out.
  2. Summary judgment.
  3. Next Tuesday.

Security for costs should be set at a level that is:

  1. High.
  2. Very high.
  3. Cripplingly high.
  4. Higher than that.

 

Timetable defaults

The defaults by the other side are:

  1. Concerning.
  2. Unexplained and serious.
  3. Borderline contemptuous.
  4. All of the above.

The defaults by our side are:

  1. Understandable.
  2. Out of our control.
  3. Really the other side’s fault [specify].

 

Next steps

Our estimate of hearing date is:

  1. Implausibly less than the other side says.
  2. Significantly more than the Court wants to grant.

 

The height of the horse I will get on at the procedural hearing is:

  1. High.
  2. Very high.

 

Despite having raised no less than three highly contentious matters in this memorandum do we optimistically venture that orders might be made on the papers and appearances might be excused?

  1. Yes.
  2. Very much yes.

 

 

———————————————–

For court use only

To be Minuted:

  1. Orders accordingly.  Appearances excused.
  2. Appearances required but cryptic silence as to which side I am annoyed at.
  3. Memorandum forwarded to Law Society marked attention of Standards Committee.

 

Answers to the second back to work quiz, or, “technically, I’m not sure that counts”

You can scroll down for the answers, or you can read the post with just the questions here.

Please address all complaints about the answers to:*

Dame Helen Winkelmann
Supreme Court of New Zealand
85 Lambton Quay, Wellington
DX SX11224

 

 

 

 

 

 

 

 

 

 

 

 

 

When did the Court of Appeal hear an application for judicial review sitting at first instance (and why)?  (I’m sure there were many but at least two “famous” cases were.)

The two I’ve got are CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA):

CREEDNZ.PNG

And Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (multiple citations but see below from [1981] 1 NZLR 614 (CA)):

Erebus.PNG

Please note the excellent sentence: “The cumbrousness needs no stressing.”

 

Name:

  • a Chief Justice of New Zealand that was an Attorney-General; and
  • a Chief Justice of New Zealand that was a General attorney.

Both Prendergast CJ and Stout CJ were Attorneys-General (no points for guessing Stout CJ since he seems to have performed literally every governmental and judicial role over the course of his life).  And Barrowclough CJ was a Major-General during World War 2.

 

What word connects:

  • Heydon of “on Contract” fame, and a recent Master of the Rolls?  Dyson: Dyson Heydon and Lord Dyson
  • A legal positivist and a legal publisher?  Hart: HLA Hart and Hart Publishing
  • A President of the UK Supreme Court and The History of the Pleas of the Crown?  Hale: Lady Hale PSC and Sir Matthew Hale
  • A William of old constitutional significance and a Joanna of recent constitutional significance?  Fruit: William of Orange and Joanna Cherry

 

How many current justices of the United States Supreme Court share surnames with current judges of the District Court of New Zealand?  Two, I think.  Judge Roberts and Judge Thomas.

 

What is a DINLI?

Disallowable instruments, not legislative instruments.  Though get in quick, they’re an endangered species.  See [4.3.4] of the NZ Law Style Guide for more information.  

 

Who or what are Ollivier, Bell and Fitzgerald?

Early NZ law reporters.  You can read the report series on NZLII here.  

 

Which senior court judge has been decorated for their efficiency?

Brewer J has an Efficiency Decoration.

 

Which senior court judge gets called the most names?

Bit of a reach this one, but William Young J’s full name is William Gillow Gibbes Austen Young, which is the most names of any senior court judge.  

 

Name as many New Zealand case names you can with colours in the title (one point per colour).  It’s not enough to say “I bet there is a High Court appeal called ‘White v Police'”; you need to know it.

Some low-hanging fruit from recent and/or leading cases might include: Red Eagle Corporation v Ellis; Blue Reach Services v Spark; Black v Taylor; Corporation; Brown v NZ Basing Ltd; Crimson Consulting Ltd v Berry, but I’m sure you can get more.  

 

Judges of the High Court of Niue are drawn from which New Zealand bench?

Māori Land Court

 

There are two taonga on display in front of the bench of the Supreme Court of New Zealand.  The first is a waka huia.  The second is a silver inkwell that belonged to which monarch?

Queen Anne

 

Who was the first New Zealand judge appointed to the Privy Council?

Sir Joshua Strange Williams

 

How many editions of Todd on Torts have there been?

One, if you accept the premise of the trick question.  It has only been called Todd on Torts officially in the latest edition.  Before that it was The Law of Torts in New Zealand.  If you don’t accept the premise, there have been eight editions.  

 

According to Lord Denning:

  • Who offered the reproof valiant?  Not Harry Hook, it was the security officer  remonstrating with Mr Hook who gave the reproof valiant.  Mr Hook gave the countercheck quarrelsome.  
  • Where was it bluebell time?  Kent
  • On what street can you swear at a machine to no effect?  Shoe Lane
  • What was his bestseller?  His report into the Profumo Affair
  • What is like an incoming tide that flows into the estuaries and up the rivers, and cannot be held back?  The Treaty of Rome

 

In how many third-strike sentencing cases have New Zealand courts made an order that the sentence be served without parole?

Two, I think: R v Waitokia [2018] NZHC 2146 and R v Winitana [2019] NZHC 3229, but related see R v Williams [2019] NZHC 2382 where the order would have been made but the sentence was preventive detention and the MPI was the 14 year maximum.  

 

Which judge decided Fitzgerald v Muldoon on 19 May 1976?

Not Wild CJ, because this isn’t *that* Fitzgerald v Muldoon decision.  This one was decided by Beattie J.

 

Which judge is this?

Quiz1

Ellen France J

 

 

Why must the Crown Law Office deal with cases relating to shirts and trousers?

It’s a CLO-thing

 

 

 

*Please don’t really send anything to the CJ.  I’ll get in trouble…

The second Strictly Obiter quiz for the recently-returned-to-work

Harrumph – I am back at work on 6 January.  You can see last year’s (better) quiz here, and its answers here.  The new (worse) quiz is below.  The answers will appear in a separate post in a week or so, after which several of you ingrates will point out things I have got wrong.

 

When did the Court of Appeal hear an application for judicial review sitting at first instance (and why)?  (I’m sure there were many but at least two “famous” cases were.)

 

Name:

  • a Chief Justice of New Zealand that was an Attorney-General; and
  • a Chief Justice of New Zealand that was a General attorney.

 

What word connects:

  • Heydon of “on Contract” fame, and a recent Master of the Rolls?
  • A legal positivist and a legal publisher?
  • A President of the UK Supreme Court and The History of the Pleas of the Crown?
  • A William of old constitutional significance and a Joanna of recent constitutional significance?

 

How many current justices of the United States Supreme Court share surnames with current judges of the District Court of New Zealand?

 

What is a DINLI?

 

Who or what are Ollivier, Bell and Fitzgerald?

 

Which senior court judge has been decorated for their efficiency?

 

Which senior court judge gets called the most names?

 

Name as many New Zealand case names you can with colours in the title (one point per colour).  It’s not enough to say “I bet there is a High Court appeal called ‘White v Police'”; you need to know it.

 

Judges of the High Court of Niue are drawn from which New Zealand bench?

 

There are two taonga on display in front of the bench of the Supreme Court of New Zealand.  The first is a waka huia.  The second is a silver inkwell that belonged to which monarch?

 

Who was the first New Zealand judge appointed to the Privy Council?

 

How many editions of Todd on Torts have there been?

 

According to Lord Denning:

  • Who offered the reproof valiant?
  • Where was it bluebell time?
  • On what street can you swear at a machine to no effect?
  • What was his bestseller?
  • What is like an incoming tide that flows into the estuaries and up the rivers, and cannot be held back?

 

In how many third-strike sentencing cases have New Zealand courts made an order that the sentence be served without parole?

 

Which judge decided Fitzgerald v Muldoon on 19 May 1976?

 

Which judge is this?

Quiz1

 

 

Why must the Crown Law Office deal with cases relating to shirts and trousers?

 

The only New Zealand lawyer Power List you will ever need

LawFuel has updated its Power List for 2020 and I’ve read it with the normal bemusement.

LawFuel’s articles have always fascinated me.  They talk about the New Zealand profession in an American accent.  I non-ironically love the language they use, the press releases they repackage and the headlines they import from the States.  It’s such a distinctive voice.  Siren-like, with all the implications of that term.  Essentially non-essential in ways I can only dream of imitating.

And the Power List is all that and more.  I like the authority with which it speaks:

The List is once again compiled following feedback from senior members of the New Zealand legal profession and our own research into the roles and power rises and falls of a profession facing some unique challenges both from within and from outside.

Strongly rejected is the idea that, hey, this is a list of pretty clever people doing things in the law that we think are interesting and that you might find interesting too and we’ve put it in a list because that’s always a bit of fun.  No, this list is Arduously Researched.  It is Scrupulously Ranked.  One of these people has, this year, Broken Into The Top Ten.  Most lists like this are subjective, so calling it subjective is an observation, not a criticism.  But the subjectiveness sparkles especially brightly when the metric veers all over the shop in order to justify the inclusion of certain people: when straight “power” won’t do, people are lauded for their “quiet power”.

EDIT: As one astute commenter noted, the 2020 list features at number 44 Andrew Stockley as the Dean of the Auckland Law School.  Except the Dean of the Auckland Law School has been Professor Penelope Mathew for the last nine months (since March 2019).  Arduously Researched.

But isn’t it a pain to read up on the Power List every year?  Especially because there seem to be the same types every year.  Fortunately, I have read several iterations now and have distilled its essence.  So if you don’t feel like reading the Power List, read on for the only New Zealand lawyer Power List you will ever need (presented unranked):

 

The doddery old QC

Led every famous case in the 90s and soon to lead a bunch more in his 90s.  And yes, it’s always a him.  Quietly thinks things have gone downhill since Barrowclough gave up the Chief Justice-ship.  Once juniored for Alf Hanlon.  Last looked at the statute book shortly after the 1908 consolidations.  No longer a member of the old boys club since he aged out.

 

The President of some lawyers’ association

NZLS probably, maybe ADLS.  By rights it should be ALWU but you can’t have power if you’re under 30 years old.  An ex officio member of the Power List.  Lawyer organisations exist as sort of punching bags despite doing decent enough work.  Their main function is publishing a magazine in order to feature letters to the editor complaining about what they do.  A profession full of rich egomaniacs is almost impossible to regulate, but the task of the president is to do that lest the government step in.

 

The old legal evergreen who’s been banging around since the 70s

Perhaps they were a Cabinet Minister under Lange.  Maybe they were an Ombudsman in the early 90s.  They’re definitely a Distinguished Fellow somewhere.  Yes, they’re still here and have power if by power you mean name recognition with your dad. They continue to publish articles in law journals that seem more about politics than law.  A new project from them can still land them the second interview slot on Nine To Noon.

 

The head of legal in a large government regulator

Name recognition through fronting cock-ups.  Trying to revitalise this key industry regulator that has fallen on hard times.  What’s worse than a government bureaucracy? A government legal bureaucracy.  They say a large ship takes a long time to turn.  Unfortunately there is no large ship metaphor that ends positively: the Titanic, the Lusitania, the Poseidon.  Wasn’t Speed 2: Cruise Control set on a boat?  Constant tension headaches have given them the power to levitate Panadol tablets with their mind and if that’s not true power we don’t know what is.

 

The tireless self-promoter

Open any issue of LawTalk from the last five years and there will be a piece they got a junior to ghost write.  Has cornered a niche area and writes on it constantly like a cringe budget Kiwi knock-off of Richard Susskind.  Adored outside the legal industry and deplored within.  Has sent three emails to CPD providers already this year suggesting seminars they could front.  Has another book out this year. Power through indefatigability.

 

The ex-High Court Judge who does arbitrations now

Retired from the High Court and treating Ted Thomas as a cautionary tale.  Spending their gold-plated pension on inner-city chambers.  Now able to talk with people they meet on Shortland Street.  They put up with 15 years of the Court of Appeal tipping them over on the facts, and will now face 15 more of the High Court tipping them over on the law.  No longer able to formally hold people in contempt, but freer now to do so informally.

 

The civil servant you have never heard of

Oh, them?  I thought it was old so-and-so who did that?  Where’s he gone to then?  Oh really?  So who’s this then?  Oh well good on them I suppose.

 

The large law firm managing partner

Promoted as a result of their firm casting around to find one of the few partners who wasn’t part of the bad old days.  Has overseen a hasty reform program of working-late dinner allowances and salary top-ups for junior staff, funded by removing the free booze and the strip clubs on expenses.  About to front an apology tour of the Law Deans to get back on the Christmas card list.  Worked out quite quickly that the best answer to corporate clients asking about the firm’s commitment to eliminating mistreatment of junior staff is to say “we do the same things as you”, and then let fear of hypocrisy deter follow-up questions.

 

The one from Christchurch

Everyone else is from Auckland and Wellington so we cast around and found one person we could plausibly put on the list who was from Christchurch. This counts as diversity.