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.

Reports suggest justice system costs money

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

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

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

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

An appeal judgment

Introduction

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

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

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

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

The facts

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

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

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

Test on appeal

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

The grounds of appeal

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

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

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

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

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

Result and disposition

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

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

Bold, novel, ambitious, and valiant

In Midland Bank Trust Co Ltd v Hett, Stubbs & Kent (a firm) [1978] 3 WLR 167 (Ch D), Oliver J wrote (at 183):

Mr. Harman’s submission seems, at first sight, a bold one, for there is a formidable and continuous line of cases, some of them decided since the Hedley Byrne case [1964] A.C. 465, which assert that a solicitor’s relationship with his client is a contractual one only and gives rise to no liability in tort. But boldness and wrongness are not synonyms and although justice is said to be blind, the doctrine of precedent does not prescribe that the court must blindly follow previous decisions without considering their rationale and the impact upon them of subsequent authority.

It is not clear that is the position in New Zealand where most bold submissions are missing, presumed dead.  For example, in West Coast Environmental Network Inc v West Coast Regional Council [2013] NZEnvC 42 we have:

WestCoast

Bold comes in many flavours.  A submission can be “somewhat bold” (Harrison v Harrison HC New Plymouth AP18/00, 11 September 2001 at [19]).  It can be “to say the least, a bold submission” (R v Tye [2007] NZCA 330, [2008] 1 NZLR 214 at [17]).  It can be “extremely bold” (R v Eide (2004) 21 CRNZ 212 (CA) at [80]).  Or, worse, it can be “with respect … a bold submission indeed” (New Zealand Tamil Society Inc v Caisley HC Auckland CIV-2011-404-160, 13 October 2011 at [8]).  And the only thing worse than a bold submission rejected summarily is for a court to note that “[t]hat was a bold submission – I am not sure that Mr Thorp appreciated quite how bold – but in any event I will deal with it”, then proceed to absolutely wreck you for the next five pages (Butler v Countrywide Finance Ltd [1993] 3 NZLR 623 (HC) at 631). 

There is no greater hallmark of defeat than to have your submissions tagged by a judge with a positive adjective.  Compliments are the handmaidens of judicial rejection.  I defy you to find a “valiant” submission that a Court has ever accepted.  Or a brave one.  

So too with optimistic submissions.  “Optimistic it may have been, but Mr Fairbrother submitted that optimism at the defence bar is not necessarily a bad thing in an adversarial system” (R v Huang [2009] NZCA 527 at [58]).  That submission was itself… optimistic.  Courts note when submissions are “highly optimistic” (R v Weatherston [2009] NZCA 267 at [30])  or when they are made with “a surprising degree of optimism” (A v R [2007] NZCA 448 at [29]).  A submission can be “optimistic and untenable” (Wenzel v R [2013] NZCA 403 at [64]) or “optimistic, if not plainly ingenuous” (Burke v Superintendent of Wellington Prison [2003] 3 NZLR 206 (HC) at 218).  And when courts are feeling really mean then “[o]ptimistic would be a charitable description of the last of Mr Comeskey’s submissions” (R v Huang [2008] NZCA 46 at [53]).  

Meanwhile, the less convincing a submission the more ambitious it becomes.  At the first level one gets an “ambitious submission” (Austin v Police [2013] NZHC 54 at [14]).  Next, “a very ambitious submission” (Harrington v Wilding [2019] NZCA 605 at [42]).  Then, “an extremely ambitious submission” (Duff v R [2020] NZCA 116 at [16]).  And, lastly, if counsel has not already cringed themselves out of existence, a Court will describe your case as “with respect, an extremely ambitious argument” (Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA) at [152(b)]).

Novelty is not a compliment – not for submissions that are “somewhat novel” (R v Manuel [2020] NZHC 2587 at [20]), “rather novel” (Schuler v Grant [2014] NZCA 91, [2014] NZCCLR 19 at [40]), nor “novel and startling submissions” (Haig v Edgewater Developers Ltd (No 5) [2012] NZEmpC 189, [2012] ERNZ 543 at [69]).  And for true novelty value, the submission ought to be recorded in full: “The suggestion that an order for costs of the High Court constitutes the proceeds of crime is a novel submission and … is ludicrous.” (Gibson v Dental Council  HC Auckland CIV-2010-404-230, 28 June 2010).  

If any of this comes as a surprise, then it shouldn’t.  Judges love to record submissions as “surprising”.  Submissions can be “somewhat surprising” (Field v R [2010] NZCA 556, [2011] 1 NZLR 784 at [186]), “rather surprising” (Taylor v Attorney-General [2016] NZHC 355, [2016] 3 NZLR 111 at [142]), “doubly surprising” (Paros Property Trust Ltd v Smith [2019] NZHC 1657 at [3]), or “distinctly surprising” (R v Guild CA219/04, 11 October 2004 at [82]).  And in one of the best instances of a “nice try” on our books: “This most novel and surprising submission suggested an ingenuity deserving of a more worthy cause.  It is, in my view, plainly untenable.” (McCormack v Ministry of Transport HC Wellington M732/87, 1 March 1988 at 3).  

So, if you have enough courage (noting that “a courageous submission” will also come in for comment: Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462 at [213]), you too can advance bold, valiant, optimistic, ambitious, novel, surprising, brave and courageous submissions and go down in a screaming heap. 

But that would be to ignore the lessons of the cases above.  The smarter play is to ensure your submissions are craven, weak-willed, hackneyed, and knackered.  That all but guarantees their acceptance.  Goodness knows it’s what I do.  And it’s the only way to avoid a situation where things get so bad your submissions are described as “heroic” (Police v Holland [2009] DCR 152 (HC) at [20]).

Towards a national emergency stockpile of interesting reserved judgments

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Auckland has returned to Alert Level 3 and I have returned to the desk in my spare room, where I get cooked by the sun from the hours of 11.30am to 3pm.  I am very lucky to be supported by my employer and my colleagues, to have a well-paying job that I can do during a lockdown, and to have ready access to home-cooked, carb-based lunches.   The worst I have to contend with is a combination of heat and lunch pasta causing me to use the word “unimpugned” in a statement of defence in the early afternoon haze.  People across Auckland and across the country have it far tougher than me.

In normal times, like most people, my spare minutes and quiet moments are spent skim-reading new cases on www.nzlii.org.  Mainly the senior courts, but with a smattering of disciplinary tribunals and the Legal Complaints Review Officer.  As I’m sure it is for many, it’s a sort of reassuring compulsion.  Interesting cases to be filed away in the back of one’s head; typos and approximations of jokes screenshotted for Twitter; costs decisions acting as a flag of cases from months back that may have flown under the radar; new syntheses of case law of a particular area.  It’s a comfort to bob on a vast sea of case law, even if the fine detail of the sea floor remains out of view to casual anglers like me.

But what in normal times is a reassuring compulsion, in alert level 3 becomes a lifeline.  Just as man cannot live on bread alone, so too is it difficult to sustain one’s self through lockdown with only a steady diet of judgments on discovery obligations from Associate Judge Lester or sentence appeals from a divisional court.  The background stresses, the distractions, the poor posture of a dining table chair, the digestive effects of too much lunch pasta: the need for interesting new case law is greater than ever.

It is vital in times like these that the courts not only continue to function as close to normal as possible, but that they contribute to the wellbeing of the country as a whole by providing those confined to their homes with interesting reading material.  It is essential that in times of crisis, new decisions can be made available immediately, and in sufficient quantity, to those who are dependent on them.

That is why I am calling for the creation of a national emergency stockpile of interesting reserved judgments.

The national emergency stockpile would consist of a collection of up to 20 senior court decisions, ready for emergency deployment upon entry into alert level 3 or at the direction of the Chief Justice in consultation with the Attorney-General.  In reality, the stockpile would amount to a holding zone for any judgment issued by the courts where a judge identifies on the internal distribution cover sheet that it contains a point worthy of law reporting.  When a judge completes a judgment and identifies that it qualifies for the stockpile, instead of being immediately released to the parties it will be sequestered in the stockpile for a pre-determined period of time.  The length of the sequester will depend on the level of court.  High Court judgments will be held for one month.  For the Court of Appeal, which has generally longer judgment delivery times for important decisions, two months.  For the Supreme Court, who can and do take as long as they please to release judgments anyway, three months.

If the stockpile is not called upon during the period a judgment is sequestered then, at the end, of the period it is released to the parties in the normal way.  Most judgments will not qualify for the stockpile, so overall judgment delivery timeframes will not be unduly affected.  And all this process does is build a short sequester into a system that already exists, meaning the additional administrative cost is very small indeed.

The stockpile will take time to accumulate, and the precise number of judgments held may fluctuate over time.  But, once established, upon any significant national event where people are confined to their homes and require the comfort and intellectual distraction provided by new judgments, these 20 judgments (or a portion of them) can be released immediately.  By using the Civil Defence emergency alert system, the text of these judgments can even be sent to every cellphone in New Zealand.  How much better we would all feel if any emergency 9.00pm press conference was accompanied by the delivery of new judgments on s 27 of the Sentencing Act 2002, on intensity of judicial review, and on the status of abuse of process as a standalone tort in New Zealand.

Every crisis is an opportunity.  The time for this balm for a nation is now.  And as soon as I can get the Rules Committee to stop blocking my emails, I will be raising this at the highest levels.

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

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

First, Lawlink explains some of the background:

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

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

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

The mandatory duties are:

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

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

The default duties are:

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

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

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

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

And Rhonda Powell on the New Zealand Law Society website:

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

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

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

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

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

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

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

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

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

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

We recommend thinking about whether:

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