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.

 

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 😦

 

 

Legal horoscopes

Beit_Alpha
I’m on the cusp of Aries and Band Two of Fatu.

 

Aries (March 21 – April 19)

You’ll struggle with a constant sense of rejection as you try to get a registrar to accept an application for probate.

Something will happen this month that will require you to seek the mercy of others, at least until the Criminal Cases Review Commission is established.

A mistake calculating working days will have unexpected benefits.

 

Taurus (April 20 – May 20)

Everyone is so very accepting of all you have to offer, except that one self-represented litigant who is dodging service.

Sometimes going through the motions is all you can do, especially if you’re presiding over the miscellaneous motions list.

Under no circumstances use Latin terms in your court documents.

 

Gemini (May 21 – June 20)

Your sense of satisfaction will be greatly increased this month, but so too will be the costs ordered against your client.

Mars is in your house this month, which is technically trespass.  Go to your bathroom, lock the door and call the Police.

Part 30 of the High Court Rules will hold special meaning for you.

 

Cancer (June 21 – July 22)

The safest place after a bank robbery is the smashed vault that’s crawling with armed cops and ringed with Police tape.  By that logic, Russell McVeagh looks pretty good right now.

If the courts can call the 11.30am break “morning tea” then 9.15am is a perfectly acceptable time to get to work.

Use Latin terms in your court documents at every opportunity.

 

Leo (July 23 – August 22)

It never rains but it pours this month, as you finally get a case on Decisions of Public Interest but it’s one where you got an absolute pantsing.

Write down three things you hope to accomplish this month and then send it to yourself in a letter, to be opened after thirty days.  Be sure to label the letter without prejudice.

Words come easily to you this month but so do prolix pleadings.

 

Virgo (August 23 – September 22)

Too many cooks spoil the broth, but three Cookes have made it to the High Court bench.  It just goes to show that you can’t place great store in platitudes.

At last people will start seeing your inner queen.  Why else would they be establishing a *Royal* Commission into you?

If anyone tries to challenge you, plead three aggressive affirmative defences.

 

Libra (September 23 – October 22)

This month you’ll realise that some things just aren’t meant to be, as you ask for your third amendment to timetabling.

You have to spend 10 hours per year becoming a better lawyer but no hours per year becoming a better person.

Read McGechan on Procedure for an hour every night before bed.

 

Scorpio (October 23 – November 21)

What’s that old saying? “Lawyers, guns, and money – pick any two.”  A new brief will come across your desk that shows you that you were right to hold out for all three.

You’ll feel your age this month when you realise your standard form notice of appearance still says you’ll accept service via fax.

You will get news you will want to tell everyone.  Tell your insurer first though.

 

Sagittarius (November 22 – December 21)

A voyage of discovery will see you spending late nights at the office reviewing documents for privilege.

Your own truth is personal to you, but it won’t get you very far if you can’t point to where it is in the agreed summary of facts.

If Mai Chen calls, don’t pick up.

 

Capricorn (December 22 – January 19)

Your efforts to be less judgemental will be put to the test as you accept appointment to the District Court bench.

Now matter how early the bird is, the worm can’t give more than a 25% discount for a guilty plea.

Beware of the rule in Re G J Mannix Ltd.

 

Aquarius (January 20 – February 18)

A tough choice between your personal and professional lives beckons this month as you have to choose between losing your appeal and losing your appeal.

You’ve always struggled to get answers despite being such a particular person.  This month you’ll realise that it’s because people aren’t required to respond to particulars.

Despite raising your standards you will get in trouble with a Standards Committee.

 

Pisces (February 19 – March 20)

Being proven right in your personal life will come as a relief, but the same can’t be said in your application for judicial review where you’ll be proven right but relief is discretionary.

You won’t always get it right the first time, but then, neither did the Supreme Court in Saxmere.

Pleading won’t change anything, so try a form of alternative dispute resolution.

 

Famous songs as written by lawyers

Tuxedo Injunction – Glenn Miller and his Orchestra

Sitting In the Dock Of The Bay – Otis Redding

Where You Plead – Carole King

Lien On Me – Bill Withers

Van Bohemen J Rhapsody – Queen

Section 4(5) Seconds – Kanye West, Rihanna, Paul McCartney

Sympathy for the Treasury Devil – Rolling Stones

The Prominent Entertainer – Scott Joplin

The Night They Read Old Dixie Down – The Band

Working 5 To 9 – Dolly Parton

Ademption Song – Bob Marley and The Wailers

50 Ways To Grant Leave To Your Lover – Paul Simon

 

 

Advice on not thinking about law all the time

It’s important to have a life outside law.

Take up a sport.  Tennis at least means you won’t spend your whole day at court.  In summertime village cricket is the delight of everyone.  If sailing is your thing then you can find a place to partake with a simple dock identification.

Update your wardrobe.  Take a tailored discovery.  If you have four pairs of flat-fronted pants then pleat the fifth.  Change to boxers; amend your briefs.  Re-examine that old attaché and patch up the holes in your case.  If you have veils, pierce them.

Philosophy is another refuge.  I may not qualify as an expert but here’s my opinion.  If you focus on the leading questions the answers will soon be suggested to you.  Recall your wrong judgements.  Mistakes are common, and seldom unilateral.  True meaning cannot be found by only having regard to extrinsic things.

Give back.  Service can seldom be substituted.  An exchange of value is something you should at least give consideration.  Be the beneficiary of trusty companions.

If you can’t find a cause of action then strike out on your own,  even when it seems like there is little prospect of increased security.  And when you develop an interest, work to perfect it.  You’ll soon find yourself speaking in circumstances that attract confidence.  Set aside others’ caveats.  When you find yourself at a crossroads, be sure to look around, because after all it’s always best to observe in junctions.

If things look like they’re going to run away on you, don’t bail.  Turn to religion if you have to; plenty of people have been restored by the accounts of prophets.

There will be times when mercy won’t be your prerogative.  When people plead poorly, you do not need to respond.  And when things turn to custard, well, we’re not concerned with trifles.

It’s quite the undertaking.

But be unwaivering.

And above all stop thinking about law all the goddamn time.  It’s not healthy.