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.

 

A short history of the seal of the High Court of New Zealand

Section 8 of the Senior Courts Act 2016 provides:

8 Seal

(1) The High Court must have a seal, and the Registrar of the court is responsible for the seal.

(2) The seal must be used for sealing judgments, orders, certificates, and any other document issued by the court that must be sealed.

This is not a new provision.  Section 50(1) of the Judicature Act 1908 stated “the court shall have in the custody of each Registrar a seal of the court, for the sealing of all writs and other instruments or documents issued by such Registrar and requiring to be sealed”.  Still earlier equivalents include s 37 of the Supreme Court Act 1882 and s 11 of the Supreme Court Act 1860.

And yet, despite this being perhaps one of the most interesting sections in the statute books today, very little has been written about it.  My researches have revealed no academic articles in the New Zealand legal literature about the seals of the High Court, which is simply baffling to me.

Modern-day requirements for seals can be traced to early Norman legal practices in England.  When formal judgments were drawn up, they would be endorsed with a stamp placed into melted wax.  The wax was traditionally melted over a small lamp fueled by  oil, distilled from the blubber of seals.  Thus, a decision was said to be “sealed”, and was thereafter to take legal effect.  In the early 19th century, English decisions were sealed using seal oil obtained from New Zealand shores (although Canada and South Georgia were also significant sources of seal oil).

In today’s more enlightened times, the sealing of a judgment no longer calls for seal oil, and the seal’s role is decidedly less lethal. Pursuant to the legislation, the High Court keeps on hand an official seal, in a special temperature-controlled water tank and enclosure in the Court’s basement.  Until 1992, the seal was kept in the High Court at Wellington.  From 1992 it has been housed in Auckland due to the greater number of cases heard there.

Under modern-day practice approved by the SPCA, the court registrar lures the seal onto a large inkpad with a trail of kahawai.  Once the seal is properly inked up, it is lifted by a team of court staff and then pressed gently onto decisions.  The resulting ink-stamp on the judgment constitutes “sealing” in its modern form.

Seal of the High Court.png
Preparing to seal a judgment (Source: Ministry of Justice)

 

The present seal of the High Court is a Southern elephant seal called Morrie.  Before his appointment in 2011 he resided on the shores of Campbell Island, and within New Zealand territorial waters.

elephant-seal-1920-3
Morrie, pictured in his tank in the basement of the High Court at Auckland

Although the seal of the High Court has been a role that has not typically attracted attention, seals over the decades have featured in important moments in New Zealand legal history.  The first seal of the then-Supreme Court – a New Zealand sea lion called Anton – sat en banco with Chief Justice Sir William Martin in 1842 when complex matters required a full bench.

When an early seal of the High Court – Felipo – retired in 1913, Chief Justice Sir Robert Stout shot it and had him turned into a set of judicial robes.  The robes have since been worn by every Chief Justice at their swearing-in.

In 1983, the then-seal of the High Court – a New Zealand fur seal called Keith – died unexpectedly in office, and the then-Department of Courts was unable to arrange a replacement until December of that year.  The resulting dearth of official civil judgments from that year can still be seen today in that there is only a single volume of New Zealand Law Reports that year.

Although s 8(2) of the Senior Courts Act 2016 bestows responsibility for the seal on the Registrar of the Court, the judges also take an active role.  The Chief High Court Judge is responsible for maintaining a roster of judges to feed the seal on weekends.  During Court breaks at Easter and Christmas/New Year, judges with coastal baches regularly take the seal for holidays.

The seal of the High Court has also attracted criticism.  Of the 22 seals of the High Court (and former Supreme Court) there has never been a female seal appointed, despite several extremely well-qualified candidates.  In addition, animal rights activists assert that, with increasing case numbers, Morrie is becoming overworked.  They seek a legislative amendment permitting the appointment of up to two part-time deputy seals in order to reduce the workload on the full-time permanent seal.

Plainly, this short overview cannot replace serious academic study of this topic.  My current application for Borrin Foundation funding would see me undertake an interdisciplinary study of the work of the seals of the High Court, as well as record interviews with the two former seals of the High Court that remain alive today (Truman and Buzz).  Any and all writing on this under-considered subject should be welcomed by a legal community at risk of forgetting the important place of the seal of the High Court.

You can only read this post if you promise to make a submission to the Rules Committee

The Rules Committee (like the Small Council if everyone was Mace Tyrell) has released a discussion paper called Improving Access to Civil Justice.  It is described as an initial consultation with the legal profession in which the Rules Committee seeks comment on four potential areas of reform it has identified in order to improve access to justice by reducing the costs associated with bringing a civil matter to court.

The Rules Committee can’t legislate.  The most it can do is modify the High Court Rules.  A cynic would say that trying to solve the problem of the excessive cost of civil litigation using the powers of the Rules Committee is like trying to stop a runaway car when all you’re allowed to press is the button for air conditioning.  But I’m not a cynic.  Rules changes are the best we can do until half the legal profession realises it doesn’t need to make as much money as it does and that paying, say, a 29 year old lawyer at a large law firm significantly more money per year than his, say, 60 year old maths teacher mother, isn’t an appropriate reflection of their respective contributions to society.

Anyway, a lot of good can probably be brought about by rules changes.  This present consultation is important because it’s the start of a process that *will* make changes.  There is a new Chief Justice at the head of the Committee, driving a topic she has spoken on a lot, there is momentum to do something (or at least as much momentum as you can get in a Committee that only meets four times a year), and there is presumably political (judicial?) capital in the bank.  The last seven or eight years are full of Minutes of Rules Committee meetings that read like this:

Screen Shot 2019-12-17 at 9.38.35 PM

Well, guess who’s in charge now?

The four options the Committee seeks feedback on are:

  1. Introducing a short trial process in the High Court and/or modifying the existing short trial process in the District Court.
  2. Introducing an inquisitorial process for the resolution of certain claim in the High and District Courts.
  3. Introducing a requirement that civil claims be commenced by a process akin to an application for summary judgment.  (Or, as I like to think of it, the elephant-trap-just-inside-the-front-door option.)
  4. Streamlining current trial processes by making rule changes intended to reduce the complexity and length of civil proceedings, such as by replacing briefs of evidence with “will say” statements, giving greater primacy to documentary evidence, and reducing presumptive discovery obligations.

But even if it’s inevitable that Something Must Be Done, it is still very much up in the air what that Something is.  As the Committee points out, it does not know which (if any) of the four options it favours.  Hence the consultation.

The Committee has called for submissions by 1 May 2020 and details about how to make a submission can be found in the discussion paper. As the Committee points out, input in these matter from the profession is important.  Who knows, I may well be able to bring myself to say something vaguely serious about options 2 and 3 (and why I think they are Bad Ideas).  Even if, like me, your experience with pure civil litigation is seeking adjournments in the duty judge list, your experiences or research is no doubt relevant to the task.

In the meantime, below are six ways I figure could improve access to justice by reducing the costs associated with bringing a civil matter to court.  You are only allowed to read them if you promise to send something serious to the Rules Committee.

 

The crime option

Reduce the cost of bringing a civil matter to court by initiating it as a private prosecution or, better yet, get the state to bring it for you.  While this may be equally expensive you will have eliminated the cost of a civil proceeding.  Boundary dispute?  That’s criminal trespass.  Breach of contract?  That’s obtaining by deception.  Arguing that New Zealand is forum non conveniens?  Did you know that’s actually a form of treason?

 

The lightning round option

Gamification is in these days. All witnesses enter the witness box at the same time.  They are each given a buzzer.  Lawyers take it in turns to ask ten questions each.  First witness to buzz in gets to answer.  The court must accept the answer given.  At the end of a round, the witness who answered the fewest questions gets eliminated.  The rounds continue until there are no witnesses left.  Limit damages awards to a Gold Coast holiday package or a new Toyota Rav 4.

 

Expanded “will say” statements

Instead of lengthy briefs of evidence being an exhaustive written record of a party’s evidence, the Rules Committee has sought comment on greater use of “will say” statements. “Will say” statements give a summary of the oral evidence a witness will give at the hearing (rather than it being a full record of their evidence).  But why stop at what a witness will say?  Further subheadings would lead to the more efficient conduct of the trial.  We need to know what a witness:

  • Will say.
  • Won’t say.
  • Will remember.
  • Won’t remember.
  • “Won’t remember”.
  • Won’t say at first but will admit when shown the receipts.
  • Will say but will regret later.
  • Won’t say now but will blurt out at trial for the first time.

 

The Luminaries Rule

In Eleanor Catton’s The Luminaries, each chapter decreases in length, starting with one chapter 360 pages long and ending with a chapter of just two pages.  As a general rule, anything that prods civil pleadings to resemble prize-winning literature should be encouraged.  And a Luminaries Rule could bring significant efficiencies.  A statement of claim can be of any length but a statement of defence may only be half as long.  Plaintiffs’ briefs may only be half the length of a statement of defence.  Defendants’ briefs only half as long again.  Smarter members of the judiciary may be able to predict benefits for judgment-writing also.

 

Abolish the Evidence Act and the High Court Rules in civil proceedings

A sort of ultra-Libertarian solution to the problem. Why is civil litigation so expensive?  Because there are too many rules about how you have to conduct it.  That means you need a lawyer to do it, and because lawyers are the only ones who know these rules, they charge lots of money.  The very existence of these rules are barriers to efficiency.  If anything went, then everything would go.  Let people conduct civil litigation however they like and the market will reveal the most efficient way to do things (probably some sort of Hunger Games in the High Court library).

 

The and/or option

The “just, speedy and inexpensive” determination of claims in the High Court Rules is an unachievable goal.  Like the hackneyed old joke that this suggestion is based on: pick any two.  But hide that fact by giving court users the illusion of a choice.  Amend the purpose of the High Court Rules so that it facilitates the just and/or speedy and/or inexpensive determination of a claim.  Then, require the Plaintiff to choose two of the three in their statement of claim (at their preference). Then, require the Defendant to select one from the two options chosen by the Plaintiff.  That quality becomes the key metric to be used by the judge case-managing the claim.

 

Anyway, I’ll give you a reminder about submissions in March next year.

 

Strictly Obiter’s 2019 Law Awards

It’s almost the end of the year!  Time for a retrospective.

I don’t know how the real Law Awards started.  Presumably the person responsible surveyed the legal industry and decided that the solution for its myriad problems was more self-congratulation.  It functions now as a sort of peer support group for those whose glory days were high school prizegivings.

It’s arranged by Key Media, who publishes NZ Lawyer Magazine.  NZ Lawyer Magazine is probably best known for sending Morning Briefing emails which contain legal news essential to New Zealand lawyers such as “Ashurst opens Global Delivery Centre in Brisbane”, “Burford Capital makes governance change ahead of US IPO plan”, and “Hogan Lovells to go solo in Joburg with separate SA firm”.

But the Law Awards are important: who doesn’t love celebrating an “inaugural medium-term note issuance and sustainability financing framework”?  That is why we all went to law school.  There’s also a prize for mid-market deal of the year, which is great if you’re a fuel-efficient Holden station wagon and slightly less great if you are a lawyer who is an adult human.

I suppose it’s just all very good at celebrating the business of law, and not the things about law that are interesting: the quirks, the ironies, the curiosities.  Every day, new cases come out on NZLII and they’re like tabloids if you read them the right way: “Guess what this judge said?” or “Ancient legal doctrine has flash new makeover”.  Plus you can normally headline them with a terrible pun.  Academics and judges devote their lives to swimming in the deep end of the law, but as someone who can barely swim I’d like to think you can have plenty of fun in the shallows too.

So, with all that in mind, here are the things I’d give awards to for this year.

 

Category: New Chief Justice of New Zealand of the Year

Winner: Chief Justice Dame Helen Winkelmann

What the assessors said: The first time this award has been conferred since 1999.  Tough to find an angle to parody in the same way as one could have Elias CJ dissenting all the time, but there’s something to be done with hyper-competence.

 

Category: Best Court of Appeal Decision of the Year

Winner: Misa v R [2019] NZSC 134

What the assessors said: Technically a Supreme Court decision, though you wouldn’t know it to read it.  The Supreme Court affirmed a bunch of Court of Appeal authority on miscarriage of justice and half the word count of the decision seems to be devoted to phrases like “we agree with the Court of Appeal”.  A real value-add.  (To be fair, when read in conjunction with Sena v Police [2019] NZSC 55 the Supreme Court had a good forking-over of the grounds for conviction appeal this year.)

 

Category: Best Dodged Question of the Year

Winner: Court of Appeal in Hai v Minister of Immigration [2019] NZCA 55,

What the assessors said: Ever since Machida v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 162, [2016] 3 NZLR 721, we’ve been left to wonder whether the “any other reason” ground for leave to appeal to the High Court in s 245 of the Immigration Act 2009 means the same thing as the “any other reason” ground for leave to commence judicial review in s 249 of the Immigration Act 2009.  Identical statutory language, but Machida only pronounced on the s 245 test.  Given that Parliament intentionally amended s 249 to be identical to s 245, in order to reduce the number of applications for judicial review, an identical interpretation seems consistent with the legislative intent.  Since just before Machida, though, Palmer J has been leading an armed insurrection from the High Court bench arguing that the s 27 NZBORA right to judicial review means a more generous interpretation should be given to the “any other reason” ground for the test under s 249 (see three Palmer J decisions: (RM v Immigration and Protection Tribunal [2016] NZHC 735; AI (Somalia) v Immigration and Protection Tribunal [2016] NZHC 2227, [2016] NZAR 1471; and Hu v Immigration and Protection Tribunal [2016] NZHC 1661).  The Court of Appeal’s first time dodging this question in Kumar v Minister of Immigration [2016] NZCA 492, [2016] NZAR 1591 was good but at the time the assessors felt it needed more time to develop, and for the Court to really commit to dodging this important question of statutory interpretation.  This year, we are pleased to confirm that that commitment is really on display when the Court went full on “lalalalala we can’t hear you” in Hai and again declined to answer the question, saying “For the reasons that follow, we do not need to resolve the issue in this application either” (at [39]).  Classic.  And in the meantime, there are maybe two dozen of these cases per year in the High Court without an answer to this question.

 

Category: The “You’ve Gotta Be Kidding Me” Prize for Bizarre Statutory Interpretation

Winner: Decision Suppressed [2019] NZCA 612

What the assessors said: You’ve gotta be kidding us.

 

Category: Prize for Party Anonymisation That Sounds Most Like A Civil War At Crown Law

Winner: SG v DSG [2019] NZHC 218

What the assessors said: Picked at random you say?  Suuuuure.

 

Category: Best coverage of a (quasi) judicial proceeding.

Winner: @economissive for this Twitter thread covering the Operation Burnham Inquiry hearings.

What the assessors said: Captured the vibe of cross-examination that had more skewering than a kebab shop.  Fantastic public service in tweeting this.  See also Thomas Manch’s reporting on stuff.co.nz which gave excellent write-ups.

 

Category: Figurative Attack on the Judiciary Award

Winner: Mark Mitchell, National Party Justice Spokesperson for the executive sending much stronger signals to the judiciary about sentencing policy.

What the assessors said: We can’t really improve on what the Chief Justice said.

 

Category: Non-figurative Attack on the Judiciary Award

Winner: Gilliland v Police [2019] NZHC 289

What the assessors said: This joke is in tremendously poor taste.

 

Category: Shortest Substantive Decision of the Year

Winner: Ullah v Chief Executive of the Ministry of Business, Innovation and Employment [2019] NZHC 332

What the assessors said: Eight paragraphs for an application for judicial review.  No messing around.

 

Category: Classic Brewer J Moment of the Year

Winner: Still wearing his ceremonial red robes when presiding over admission ceremonies as late as November 2019, despite the ceremonial reds being discontinued.

What the assessors said: Classic.

 

Category: Award for Looking Like Parents That Are Just Happy That You’ve Come Out Of Your Room And Joined The Family At The Table For Dinner, It’s So Nice To See You And We Can Eat Together As A Family Tonight

Winner: These two from the new Courts of New Zealand Video:

Mum and Dad

 

Category: Best PR in the Business Award

Winner: Whichever media liaison person shut down that “My sister is the Chief Justice” story which got precisely one story on NBR and then no one ever talked about it again.

What the assessors said: Sure, it was someone saying something dumb and only speaks to poor judgement on the part of the person who said it, but it is astounding that this didn’t get more play.

 

Category: The Austin Powers Award For Bringing Back The Swinging Sixties

WinnerH (SC 52/2018) v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433

What the assessors said: Anisminic is back baby!  A decision written by O’Regan J, but also one of the last decisions of Elias CJ before she was out the door.  A threat to ouster clause detente off the back of a highly sympathetic set of facts.

 

Category: The “I Just Have To Remind You That You’re A Judge Writing This” Prize.

Winner: Kós P and French J in Zhang v R [2019] NZCA 507 at [51] which included the line that drug mules “may or may not apprehend the scale of the contents of their bags or bodily passages”.

What the assessors said: Christ.

Highly commended: Kós P in Orchard v R [2019] NZCA 529 at [1] which opened the judgment with the line “Mr Orchard, an arborist, fell from a tree”, before going on to describe a grim-as-fuck set of facts.

 

Category: Most Suspicious Art Design in Judicial Photographs

Winner: The background of the photos of new senior court judges, like this one:

EAYGUobU0AADhgR

What the assessors said: All the judges sworn in in Wellington this year had this background, which is a dazzling array of volumes in primary colours.  It looks really good!  But is it a genuine array of books?  Any report series or statute series has to be longer than the few volumes displayed from each series, right?  So has this collection been designed and curated solely for the purpose of being a background that pops?  That seems unlikely given it would have to be maintained over the length of the various swearings-in this year.  We want to know what those books are!  If someone can get Strictly Obiter into what we assume is a library in the Old Supreme Court in Wellington, he will investigate and report back!

 

Category: “Times This Blog Nearly Got Into Genuine Trouble” Commemorative Plate

Winner: Publicising the Crown Solicitor at Invercargill’s strange LinkedIn comments about the Aoteroa Legal Workers Union where she seemed to say that young lawyers needed to harden up.

What the assessors said: The Crown Solicitor at Invercargill doesn’t have a LinkedIn page any more.

Highly commended: Complaints about my Mark Lundy tweets 😦