Strictly Obiter Alert Level 4 Quiz – Tuesday 24 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. Name a country that currently appoints King’s Counsel.

2. What links buzz, quarter, top, and attraction?

3. Find something unusual about Terpstra v Police available here: http://www.nzlii.org/nz/cases/NZHC/1988/2263.pdf

4. Which current QC played a central role in the establishment and first decades of The Capital Letter?

5. Name an organisation with the acronym NZBA that appears higher up the list of Google results than the New Zealand Bar Association.

6. William, George, James, Robert. Who’s next?

7. There are two Justices France, and one Justice French. But which President of the Court of Appeal had Parris for a middle name?

8. Where does the Chief Justice rank in New Zealand’s order of precedence?

9. What song features the following?

(1) An electric guitar plays staccato (short, precisely articulated) chords.

(2) It plays at a moderate tempo of approximately 84 quarter notes (crotchets) to the minute.

(3) There is a steady duple metre.

(4) A four-measure (four-bar) harmonic template is established that runs unchangingly throughout the song. This template consists of two measures of D minor, followed by two measures of G minor (first inversion). The precise notes in the chords vary slightly, but the chords themselves do not – they are always D minor and G minor – and the note D appears in every chord, functioning as a sort of pedal point or drone, a constant bass to the music.

(5) At the end of each round of four measures, there is a thirty-second note (demisemiquaver) chord of A7 (in fact D/E/G, the A is not sounded), a flick of an upbeat propelling the music back to the tonic D minor.

10. Why does a flame pay for its own ticket to a popular play?

Answers:

1: Tonga does – other answers accepted. 2: These are all synonyms for types of court: High, District, Supreme, Appeal. 3: A decision from the erstwhile Tokoroa Registry of the High Court – appearing once and never again? 4: Jack Hodder QC. 5: The New Zealand Bankers Association and the New Zealand Breastfeeding Alliance. 6: Charles: Charles Skerrett, the fifth Chief Justice of New Zealand. As long as you can remember MAPSS MOB WDEE (pronounced maps mob wuh-deeee!) you can remember the CJs. But then you have to know their first names too, I guess. 7: Clifford Parris Richmond – photo below from this source: https://natlib.govt.nz/records/22425569 8: Fifth, behind the Sovereign, the Governor-General, the Prime Minister and the Speaker. 9: Lose Yourself, as described by a witness and quoted by Cull J in Eight Mile Style LLC v New Zealand National Party [2017] NZHC 2603. 10: Because you can’t shout fire in a crowded theatre.

CA1

Strictly Obiter Alert Level 4 Quiz – Monday 23 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. In a song made popular by Willie Nelson and Waylon Jennings, mothers were advised that they should let their babies grow up to be “lawyers instead”.  What career were they advised against?

2. What was the longest running (in terms of hearing time) civil case in New Zealand? And what was the longest running criminal case?

3. Name a currently sitting New Zealand judge who was present at the Oxford Union when David Lange made his “I can smell the uranium” speech.

4. Name someone who served as Dean of a New Zealand Faculty of Law who then served as a Supreme/High Court Judge.

5. Who served as the New Zealand judge on the International Military Tribunal for the Far East, responsible for trying war crimes allegedly committed by Japanese forces during World War 2?

6. Which of these were ancient English legal concepts, and which have I made up? Chiefage, essoin, infangthief, advowson, monition.

7. Name Asimov’s Laws of Robotics. (Yes, the Zeroth Law as well.)

8. In his autobiography, “Not Entirely Legal” Leonard Leary QC relates his defence of Thomas Hayr in a1952 prosecution for murder. In retrospect, the defence advanced the first successful instance of a particular defence in the common law world, even though said defence did not exist in law at the time. Leary was forced to argue the defence under the M’Naghten Rules, and succeeded. But what would the defence come to be known as?

9. 6.02214076×1023 gives a clue to the location of certain courts. Name one.

10. What links Jan McCartney, Simon Moore, Sir Geoffrey Palmer and Jack Hodder?

 

Previous entries are:

Strictly Obiter Alert Level 4 Quiz – Friday 20 August 2021

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

 

 

 

Answers:

1: Mamas don’t let your babies grow up to be cowboys. 2: Equiticorp for civil. Pretty sure it’s R v Bublitz for criminal. 3: Kós P was, as related in this speech: https://www.courtsofnz.govt.nz/assets/speechpapers/2hjk2.pdf but an Arthur Tompkins figures in the story so perhaps two. 4: Callan J served as the Dean of the University of Otago Law Faculty. Hammond J served as Dean of Auckland and Waikato. Palmer J was Dean of Vic. There may be more – message me on Twitter if you thought of another. 5: Northcroft J. 6: All five are real. What a system! Most have Wikipedia pages if you’re curious. 7: Did you get them? https://en.wikipedia.org/wiki/Three_Laws_of_Robotics I love Asimov’s robots stories. 8: Sane automatism – the claim to being the first comes from Leary’s entry in the Dictionary of New Zealand Biography. The M’Naghten Rules required a disease of the mind, which wasn’t really Hayr’s situation but they succeeded anyway. 9: 6.02214076×1023 is one mole’s worth. So you can take your pick of courts on Molesworth St: the Wellington High Court or the Court of Appeal. 10: They were all appointed Senior Counsel and only later reverted to Queen’s Counsel. 

What a day! Sorry for the late answers. Time to go line up at my local Countdown – one of the few in Auckland not to have been a location of interest… yet.

Strictly Obiter Alert Level 4 Quiz – Friday 20 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. What links a Radio New Zealand Wallace, a Homer who is smiling politely, Kororareka, and the longest-serving current Associate Judge of the High Court?

2. Who is the author of this, the best signature in the New Zealand judiciary?

Screen Shot 2021-08-19 at 9.41.38 PM

3. Fountains of Wayne sang about an unusual specialisation in the law. The singer is “heading for the sun” and is “gonna become” what type of lawyer?

4. What is the “dustbin of laws”?

5. What chambers in New Zealand has the most Queen’s Counsel?

6. The name of the new model for the District Court – Te Ao Mārama – comes from the concept Te Pō Ki Te Ao Mārama. What is the English translation?

7. How many databases are there on NZLII today: 206, 216, 226?

8. Which President of the Supreme Court of the United Kingdom had a degree in chemistry?

9. Identify these cities by their High Court registry code: 404, 485, 409.

10. Why will the Supreme Court always grant leave to hear cases involving the Chief of the Defence Force?

Answers now below.

Previous rounds:

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

Answers. 1: Wallace Chapman, Homer Simpson, Kororareka aka Russell, Associate Judge Bell (all first names of large corporate law firms). 2: Powell J, the John Hancock of New Zealand legal documents. 3: California Sex Lawyer. 4: The law of tort, according to Winfield and Jolowicz. 5: Shortland Chambers, I’m pretty sure. You can’t move for silk in there. 6: The transition from night to the enlightened world. 7: 206. 8: Lord Neuberger. 9: I was nice to you – they’re the big ones: Auckland, Wellington and Christchurch. Meaner questions about registry codes will follow in the future. 10: Why, because the Supreme Court will always grant leave to matters of General importance, of course.

A break over the weekend for all of us, but back for more questions on Monday. Stay safe!

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

 

1. Apart from, perhaps, LawFuel’s Power Lawyer List, the Order of New Zealand is New Zealand’s highest honour.  It is limited to only 20 living members (the ordinary members).  Over the years, some judges have been “additional members of the Order of New Zealand”: Lord Cooke of Thorndon and Sir Owen Woodhouse.  But only two judges have been full ordinary members.  One is a current member (still with us), and one is a former member (sadly no longer).  Name one.

2. What Dickens novel features the case of Jarndyce v Jarndyce?

3. Which composer worked at his country’s Ministry of Justice before going on to compose the 1812 Overture?

4. Who said (or wrote), when discussing the idea of common law measures of damages under NZBORA, “the private law tail should not be permitted to wag the public law dog”?

5. What number is in the title of the current Covid order that is creating this alert level 4 lockdown? Is it 7, 8, or 9?

6. Assume no change is made to the judicial retirement age. Of all the judges who have served or are currently serving in our modern Supreme Court, who has (or will) serve the longest on the Supreme Court bench? Possibly a less clunky way to ask this question would have been to ask who was the youngest to be appointed to the Supreme Court bench, which I think gives you the same answer, but there you go.

7. Which two High Court registries have the shortest straight line distance between them?

8. What links Justice Grant Powell, Justice Christine Gordon, and Justice Stephen Kós?

9. Which New Zealand Attorney-General appointed themselves to the High (at-the-time-Supreme) Court bench?

10. What was the name of the prerogative writ sought in Parsons v Burk – a 1971 attempt to prevent the All Blacks travelling to South Africa?

Answers now below.

 

 

 

 

Answers: 1: Sir Kenneth Keith and Sir Thaddeus McCarthy, though neither are on the LawFuel Power List. 2: Bleak House (aka my place during Alert Level 4). 3: Tchaikovsky. 4: It sounds like it could be Kós P, but it was the judicial generation just before. A great Hammond J crack from Attorney-General v Udompun [2005] 3 NZLR 204, (2005) 7 HRNZ 811 (CA) at [206]. 5: It’s order number 9. 6: According to the dates on Wikipedia it’s Elias CJ. 7: Nelson and Blenheim. 8: They all use their middle names as their first names: Laurence Grant Powell, Judith Christine Gordon, John Stephen Kós. 9: Alexander Herdman, you can read about him here: https://teara.govt.nz/en/biographies/3h18/herdman-alexander-lawrence. 10: Ne exeat regno. Please enjoy this excerpt from Peter McKenzie “New Zealand’s First Chief Justice: The Rule of Law and the Treaty” (2012) 43 VUWLR 207 at 208 paying careful attention to footnote 5. Stay safe all.

Regno

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

 

1. Who was the first President of the permanent Court of Appeal?

2. Is the classic case for recall Horowhenua County v Nash (No 2), (No 3), or (No 4)?

3. How many High Court registries are there in New Zealand?

4. Who is this Chief Justice?

Judge1

5. Do citations of the Criminal Reports of New Zealand use square brackets or round brackets?

6. What business did New Zealander Geoffrey Lee carry on before he was killed in a plane crash in 1956?

7. What is “Selden’s gibe”?

8. What links the person who has the most appearances as counsel in the New Zealand appellate courts, the guideline judgment for sentencing aggravated robbery, and Thomson Reuters’ resource management law product?

9. What other place is the Chief Justice of New Zealand also the Chief Justice of? (If you are Dame Helen Winkelmann you are not allowed to answer this question.)

10. Professor Peter Sim was Dean of the Otago Law Faculty from 1968 to 1980. About him it has been written that “He thought it best to ignore requests for information from the University Registry, reasoning that a prompt response would merely encourage them to make further demands and that if it was really important ‘they would send someone over’.” What still-used textbook did Professor Sim co-author?

Answers now below.

 

 

 

 

 

Answers: 1: Kenneth Gresson. 2: (No 2). 3: 19, I think, but tweet me to tell me I’m wrong. 4: Sir George Arney. 5: Round brackets. 6: He flew a topdressing plane – he was Mr Lee of Lee’s Air Farming, the case about corporate legal identity. 7: It’s the whole equity varies according to the length of the Chancellor’s foot carry-on. 8: John Pike, R v Mako, Salmon’s Resource Management Act – fish link them all. 9: Tokelau. 10: Hinde, McMorland and Sim’s Land Law in New Zealand.

The CJ and the CBA

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The Criminal Bar Association conference was held at the University of Auckland Business School this weekend. I got a free ticket, so I’m not allowed to tell you the coffee was so-so and there was no free wifi. But I can tell you that, caffeine, internet, and the compromise of my independence aside, it was a well-run, well-curated conference that was a good time for this public-lawyer-by-nature who dreams of the occasional crime.

The conference had genuine News: the Minister of Justice announced that legislation to repeal three strikes would be introduced within a month, subject to Parliamentary business. There was also a Detective Inspector from the National Organised Crime Group warning everyone about money laundering while standing in the Fisher and Paykel Appliances Auditorium. Occasionally Robert Lithgow QC did his best Robert Lithgow QC impression.

One and a half days of conference was attended by 370 attentive lawyers plus one Wellington-based criminal practitioner a few seats away from me who spent most of Saturday working his way through Jared Savage’s Gangland, a copy of Private Eye, and every puzzle in this week’s Listener. Whoever signed his CPD verification form, you’ve been had.

And then late on Saturday afternoon the Chief Justice blew the doors off the place.

She spoke for about 20 minutes – she was sharing the hour long slot with Kós P and Thomas J, three Heads being better than one. The other two were good. The President was permitted a short victory lap for the Court of Appeal’s junior policy, then told everyone to make more filenotes. The Chief High Court Judge lamented problems with disclosure which, in front of the CBA, is the equivalent of passing round the Werther’s Originals at the rest home.

And the Chief Justice. There were several topics, including the role of the Supreme Court. But it’s the bit about the role of the Chief Justice which I think ought to be heard more widely. I didn’t record her words accurately enough to quote back to you at length now. There was an official recording, which might be made public. But the impression still resounds, despite being delivered in the typical Dame Helen matter-of-factness (that I haven’t found a way to parody in writing yet): the rule of law is core business for a Chief Justice. And her choice of expression took practical form. These are my vain ascriptions of motive to her words, but they matter: the description wasn’t “The Chief Justice is the head of the judiciary in New Zealand”. It was “I need to see what is going on in these kinds of areas because it’s my job”. She gave an example: she needs to know about whether prisoners lose their cell assignments if they come to court, in case that perversely incentivises non-appearances or pleas. The implication was clear: the CJ needs to know, in order to decide how the courts might respond – whether that’s by considering increasing or decreasing AVL, advocating for changes with other branches of government, or holding all hearings in Swedish if that had a chance at making a difference. If it touches on the practical administration of courts’ work and the rule of law then it’s her job.

Jargon offered a decorative ribbon; she was taking a “whole of courts” or system perspective. But it’s like trying to wrap a hockey stick as a Christmas present. You know what you’re going to get (and it’s also something the CJ can hit you with).

Then the payoff. Legal aid, a topic that had already had airings at the conference. As Fiona Guy Kidd QC had said earlier that day, “The reality is the hourly rates for legal aid have not increased in the entire time I’ve been doing legal aid work, since 2011.”

The CJ didn’t hold back. And this part, I did get the quote for:

I think our legal aid system is broken. It’s hard to imagine how it can be more broken but I don’t really want to utter those words because then it will be. … It is unbelievably inadequate. … I am about to start saying it in a much more angry way.

And later, “It is a system that is going to collapse if we don’t do anything about it.” Without meaningful legal assistance for parties, we risk meaningful justice. And without meaningful legal aid, we jeopardise that legal assistance.

If that set off alarm bells at the Department for the Separation of Powers, you couldn’t hear them over the CBA’s applause.

Her Honour’s remarks, I think, went further – far further – than Dame Sian in Blameless Babes, a speech that at worst was a Gerry Brownlee-style “just asking questions” outing about penal policy, and one that came with an express acknowledgement of the separation of powers (see [16] of the speech: “In the last 10 years especially, there has been a change to greater prescription by Parliament. That is entirely legitimate. Parliament through legislation sets down the framework.”).

It was the judiciary commenting on government policy, as contained in legislation that Parliament has seen fit to enact. It was the judiciary commenting on the use of the public purse.

But far from being an overreach, it was entirely consistent with the role of the Chief Justice she had taken time to set out. It was never said out loud, but the defusing of criticism message I thought was quite compelling. The preemptive response to the criticism of “stick to your job” is clear: “this is my bloody job”.

Perhaps I’m still high on the thrill of hearing the constitution miss a gear change. But it was a moment that was genuinely electric. You will laugh at me for being too over the top but ever since Saturday afternoon I go back to  McGrath J’s expression of concern at the proposed removal of the reference to the “rule of law” in the Judicature Modernisation Bill in what became the Senior Courts Act 2016. I think those references matter precisely for moments like these.

It all seems a bit gushing, though, doesn’t it? To say an unusual speech is evidence of a Chief Justice on a mission? To claim to see strategy, to see cunning, even, if the whole thing were not so clear-eyed. To say I’ve seen rock and roll future and its name is Bruce Springsteen? Then put this aside as some injudicious hero worship. I rather suspect that if you asked the CJ she’d say she was just getting on with the job. Quite right. But if I were you I wouldn’t get in her way.

 

Where will the Supreme Court sit in Auckland?

The Supreme Court is coming to Auckland.  The leave decision in Taua v Tahi Enterprises Ltd [2021] NZSC 88 confirmed the Court will sit in Auckland in the week of 15 November 2021. At this stage it’s to hear the appeal in that case and also the appeal in Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Transport Agency (see leave decision [2021] NZSC 52 which doesn’t mention sitting in Auckland, but the Court website has it set down for the week 16-18 November 2021).

Some people will tell you that the Supreme Court has never sat in Auckland.  I think they would be right but also technically wrong, because the Supreme Court used to sit in Auckland all the time until 31 March 1980 (after which it was renamed the High Court: Judicature Amendment Act 1979, s 2).  [Inevitably someone will tell me that the modern Supreme Court has in fact sat in Auckland before, but I am happy to be confidently wrong about this…]

Now the tyranny of distance won’t keep the Court safe from Peter Watts QC telling it how badly it messed up Debut Homes.  

Perhaps sitting in Auckland is a practical thing.  Perhaps it’s a Supreme Court gap year away from the oversight of Parliament.  Probably it is part of the “justice on tour” approach that has seen the Court of Appeal play all the big centres in the past couple of years: Dunedin, Christchurch, Tuatapere, Kaeo.  Whatever the reason, from pure self-interest, how great will it be to be able to pop in and watch a Supreme Court hearing?  Maybe I’ll see you there!

If you haven’t already, you might like to read Justice Matthew Palmer’s speech in article form as “Impressions of Life and Law on the High Court Bench” (2018) 49 Victoria University of Wellington Law Review 297.  At pages 298-299 of the article he describes what he saw as some of the differences in Auckland and Wellington legal culture, and it’s one of the most interesting things I’ve read.  It’s stayed with me because as an Auckland emissary of a primarily Wellington-based organisation I really do think there are tangible and intangible differences in the legal culture between the two places (and no doubt other places as well).  Differences that I’ve never quite been able to describe beyond a laboured CSI and CSI: Miami analogy.  The article offers a really good take. 

Maybe that doesn’t make so much difference for the Supreme Court.  Since there’s only one, it draws all counsel.  The Court hears Auckland-centric cases, with Auckland based counsel all the time.  In the secret Koru Club for Supreme Court frequent fliers (the George Barton Lounge), the Jack Hodder QC you get in Auckland is going to be the same as the Jack Hodder QC you get in Wellington.  

But all of that is by the by.  The important question is where will the Court sit when it’s in Auckland?  Courtroom 1 at the High Court is the obvious choice, but that discloses insufficiently bold thinking.  Other options include:

 

Sky Tower

 

Sky Tower revolving restaurant

The highest court in the land where the wheels of justice turn slowly needs somewhere metaphorical to sit.

 


Waiheke

 

The Waiheke Ferry

Scenic. Free for several members of the court during off peak with their SuperGold Card.

 


Stratosfear

 

The Stratosfear at Rainbow’s End

Replace counsel’s internal screaming with external screaming.  

 


Danny Doolans

 

Danny Doolan’s

Not really where anyone would choose to be, impossible-to-follow conversation, and always about five minutes from a fight breaking out.  Just right for a Supreme Court hearing.  

 


Yacht

 

Stephen Mills QC’s yacht

Has the benefit of familiarity.  

 


Office

 

The old Court of Appeal hearing centre

Now disused, though months of neglect are likely to have actually improved sitting conditions there. 

 


Not pictured

My place

Two bedroom apartment, central city.  Can use the spare bedroom as a retiring room, then walk out into the open-plan lounge/dining/kitchen which will serve as the courtroom.  We have four dining chairs and the CJ can use the computer chair.

 

The best of the High Court – 1988 edition (or, yet more proof NZLII is excellent)

That petrol scent in your nose is the smell of the oily rag on which NZLII runs.  NZLII is sitting on box after box of unreported senior court decisions from the 1980s and 1990s.  This absolute treasure trove of information is otherwise packed away in unscanned, unsearchable boxes in law libraries.  For the most part, the cases aren’t on the subscription legal databases.  And, conversely, the uploading makes freely available the unreported versions of cases that hitherto have only been available in costly official reports.  It is a massive democratisation of the law from that era.

If someone who knew about law were to have skimmed all of 1988’s High Court decisions they could tell you about the learned and scholastic decisions from that year.  But I don’t know anything about law, so the results of my skim can only tell you about the interesting and absurd cases instead.

I can tell you about Hobbs v Police HC Christchurch AP231/87, 11 February 1988 where a Ms Hobbs owned a dog who attacked someone.  A policeman attended her house to interview her about her claim that the attack was out of character, only to himself be “attacked by the dog … after the dog was released from its chain by the appellant whereupon the dog immediately attacked the constable’s leg”.

I can tell you about Cairns v Department of Statistics HC Hamilton AP155/87, 4 February 1988 where Mr Cairns filled out his census form in runic Latin, not English, and was convicted of the offence of not producing a completed census form.  On appeal, Doogue J dismissed the appeal on the basis that Mr Cairns hadn’t “produced” the form by posting it in.  But his Honour noted that “it has to be said that if the legislation had intended that all responses to the surveys conducted by the Department under the Statistics Act were to be in English, then one would have expected the legislature to say so. The statute is silent as to the language of completion.”

And I can tell you about Lopesi v Auckland City Council HC Auckland AP191/87, 15 January 1988 where it was held that a totally illegible signature still met the requirement for a signed certificate under alcohol breath-testing laws.

Of course, being 1988 there was some dated language that simply wouldn’t be used by judges today.  No modern judge take the same approach as Holland J when his Honour said “That is a matter on which I cannot venture an opinion without being better informed” (Church v Hercus HC Christchurch CP26/86, 15 February 1988).

But 1988 was a good year for legal nonsense.  Like the charge of speeding through Kaeo defended on the basis that it was a “one horse town of the North” and speeding through it was not likely to endanger anyone (Carter v Ministry of Transport HC Whangarei AP35/88, 12 September 1988).  As Chilwell J noted, Kaeo may be a one horse town but “the appellant’s vehicle was a 156 brake horse car”.  In a similar vein 1988 also saw a young Tipping J, a long way from the Supreme Court, issuing an injunction about advertisements for bookcases (Freedom Furniture Ltd v Lifestyle Furniture Ltd HC Christchurch CP514/87, 22 Februrary 1988).

There is also the late 1980s typography, which goes wrong at times and makes full stops look like exclamation marks, leading to breathless judgments, like this from Gilmore v Police HC Palmerston North AP35/88, 19 February 1988:

Gilmore

And then there are the plainly kick-ass parties:

Flamethrower

An interim injunction of a cottage-industry Buzzy Bee knock-off contains shades of Denning and shades of Cull J trying to describe Lose Yourself.  Anderson J commenced his judgment in Tot Toys Ltd v Mitchell HC Tauranga CP186/88, 22 November 1988 with the following:

Some four decades ago a New Zealand company, H.E. Ramsay & Co. Ltd., devised a wooden children’s toy which has come to be known over the years as Buzzy Bee. This toy has a wooden head and wooden body, or rather abdomen for it lacks a thorax, and is in other respects more whimsically than anatomically designed. The affidavits indicate and it is really a matter of common knowledge, I would think, amongst New Zealanders that the design of this toy and its colour has remained constant since its creation. It has a yellow head with black markings, a red abdomen decorated with three transverse bi-coloured stripes of black and yellow. The antennae are represented by light flexible springs terminating in a red wooden knob. In lieu of six legs it has two blue wooden wheels in the front and a small trailing wheel at the rear. The wheels are joined by a single axle which has located at its centre a pinion, the purpose of which is to actuate a metal strip against a sounding cavity so that when the toy is pulled along it creates a representational buzzing sound. The wings which are traditionally yellow are made of wood dowel culminating in flat round simulated wings. Just as the traction of the toy actuates the sound so also by dint of friction does it cause the wings to revolve.

The affidavits indicate that some 400 thousand of these toys have been sold over the decades and that they have become a favorite from generation to generation, being purchased quite often it would seem by fond parents or doting grandparents influenced by warmly nostalgic memories of their youth.

And, beyond the absurd, the frankly fascinating.  Consider Re Tupuna Maori HC Wellington P580/88, 19 May 1988 an application for the grant of letters of administration “in respect of the deceased whose head is now in the possession of Bonhams Auctioneers of London for auction on 20 May 1988”.  The purpose of the application was “for the limited purpose of according to the deceased a proper burial according to Maori law and custom and to prevent as far as possible further indignity being visited upon him”.  Letters of administration would assist in bringing proceedings for the return of the head.  How brilliant is that?!  And the Court granted it, describing it as “plainly quite extraordinary and, I think, totally unprecedented”.  The deceased was estimated to have died in approximately 1820, which might be the longest span of time between a death and grant of letters of administration.  (You can read about the conclusion to this story here.)

There’s the perfect turn of phrase: “She has stretched the mercy of the Court to its fullest extent” (Charles v Police HC Wellington AP39/88, 30 March 1988).  And opening lines both sunny: “The subject of this proceeding is a crop of potatoes” (Christenson Potato Company Ltd v Registered Securities Ltd HC Hamilton CP63/87, 27 May 1988), and ominous: “The time has come when this unfortunate mess should be cleared up.  The case does not reflect great credit on anyone who has handled it” (Hyde v Direen HC Dunedin AP100/87, 20 May 1988).

The uploading of the 1988 decisions is a triumph, frankly.  You will use these cases.  And they’ve been uploaded at zero cost to you because of the goodwill of NZLII.  Consider donating what you can to NZLII, and support efforts to secure funding for NZLII wherever you can.  Whether you like the rule of law, or whether you just like a good zinger in a judgment, NZLII is indispensable.

An account of the 10 minutes before the interim orders hearing on the “free speech” Council venue cases

At last!  A case (a) involving interesting issues; (b) broadly within my (very small) legal wheelhouse; (c) not involving a client; and (d) in the Auckland, not the Wellington, High Court.  Perhaps I could contribute an account of the hearing.  That is, after all, how this account started.

And so I dutifully ducked out of work and bounced up Constitution Hill (that’s literally its English name) to the High Court.  2.00pm for a 2.15pm tee-off time.  In my step, some pep.  And in my hand, a polite letter to the presiding judge seeking permission to take notes in the public gallery.  The letter said I was a lawyer attending the hearing in my private capacity.  I wrote that “the purpose of the notes is to assist my personal recollection of matters discussed in open court, with a view to later writing something about the hearing”.  I didn’t mention the blog specifically because frankly that seemed a bit vain.  “Surely you must have heard of me, your Honour?”  Blurgh.  No thanks.

I got a nice message back from the judge, handwritten on my letter, declining the request.  It read:

Accredited media are entitled to observe and record what happens in court proceedings.  There are limits on even the parties being able to take notes during the hearing. 

You are free to observe the hearing but, given the private nature of your interest, permission has to be declined.

I appreciated the consideration.  But without the ability to take notes there was no way to ensure I could quote accurately what were liable to be somewhat involved legal submissions.

So the post has to end here, unfortunately.  I think the requirement to have to ask permission is a good requirement.  I’m also not interested in having a good old moan about the correctness or otherwise of the particular decision.  I have lots of thoughts but I don’t think that a blog post is the right place to do that and mightn’t be fair to the judge, whose decision I respect. 

Without the ability to take notes, I wouldn’t be able to write what I wanted, so I opted not to stay.  As always, there was a stack of work back at the office that needed to be done.  And so a bounce down Constitution Hill.  Letter in hand but no pep in step.  

I encourage you to read this from Bridgette Toy-Cronin about the rule of taking notes in Court.  

 

The pernicious habit

In 1963, the Lord Chief Justice of England, Baron Parker of Waddington, traveled halfway around the world to warn Aotearoa 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 Aotearoa 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 Aotearoa 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), Aotearoa 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.

Aotearoa 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 Aotearoa 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.