The most lawless place in New Zealand

Where is the most lawless place in New Zealand?  If you define it as the place in New Zealand that is the furthest away from a courthouse then that should be able to be calculated.  If you don’t define it that way then it’s the Oceanic Hostel on Anzac Avenue, Central Auckland.

A search of the Ministry of Justice website gives locations for the courthouses in New Zealand which is a start.

In this exercise I’m not including all territory in This Realm Of New Zealand.  Penguins in the Ross Dependency face many challenges and access to justice numbers among them.  I’m talking about the main islands and in-shore islands of New Zealand.  The Chathams count as main islands, but since there is a courthouse on the Chathams that won’t be our winner.

Fellow Twitter user @JoshMarshallNZ provided a map into which he had plugged on courthouses.  The map can be accessed here.

Map
I have a tipline! Just like WhaleOil!

From this we can kind of eyeball about where it might be.  Either half way up the West Coast or in the far southwest corner of the South Island.  Lawless lands, both!

Now, some of you probably know how to use Google Maps to calculate this sort of thing, but I don’t.  So I have done it by hand and ruler to figure out the approximate place, then looked on a map.  Highly scientific!  And while I can probably be cross-examined on the shortcomings of my methods I think it’s accurate enough in a brute force kind of way.

map2.png
Technical know-how!

It’s not the middle of the West Coast because the South Island is too thin and the High and District Courts at Timaru remain close to the West Coast.  It’s a point in the extreme south west of the South Island.  Not exactly the equidistant point between the Queenstown District Court and the Invercargill High and District Courts as the shape of the coast hews north east.

Then it’s to Google to find out precisely where it should be.  It’s an offshore island called Resolution Island or Tau Moana.  That sounds vaguely law-related!  It’s no Denning-land, but it’s close.  So Resolution Island is the point in “mainland” New Zealand that is the furthest from a court.  In particular, its western coast line is 165 kilometres from the Invercargill District Court give or take.  That’s shorter than I thought it was going to be!  In New Zealand you’re no more than 165 kilometres from a courthouse at all times.

Resolution Island
I am a master of maps!

The particular piece of Resolution Island that is furthest away is a place called the Five Fingers Peninsula.  Wikipedia has more information, as does the Department of Conservation.  And this Te Papa story has a photo of the Five Fingers themselves – rocky outcrops rising up from the sea at the southern tip of the peninsula.

Five Fingers
Also on this map are the “Many Islands” which I’m pretty sure is cheating as far as naming things goes.

Incidentally, this reminds me of the decision in Mountz v Craig [2016] NZHC 1558, (2016) 23 PRNZ 244 in which Associate Judge Osborne (as he then was) had to decide whether the Invercargill or Dunedin High Court Registry was closer to Wanaka.  Exactly the type of decision we need more of.  Zaniness is a seldom-present quality in legal disputes.

(EDIT: And see also, thanks to a commenter, the case cited in MountzNicholls v District Court at Masterton HC Masterton CP 1/96, 19 February 1996 where McGechan J had to determine whether the High Court at Wellington or Palmerston North was nearer to Masterton.)

Maybe mercator projections mean some of these distances are a little off?  It’s hard to tell.  But for now, and unless corrected, I claim that the Five Fingers Peninsula is the most lawless place in New Zealand.  So, if you like, run as far away from justice as you can, and pull the middle Finger.

Viva la revolución!

In T v R [2018] NZCA 56, [2018] 3 NZLR 308 the Court of Appeal reversed its own precedent and held that appeals from pre-trial bail decisions should be treated as general appeals, and not appeals against a discretion.  In coming to that holding the Court expressly disclaimed the idea it was pronouncing in on the test for post-trial bail appeals.  At [21] it stated (double square brackets are my addition):

[21] Sections 13 and 14 of the [[Bail]] Act address bail pending sentence and bail pending appeal.  They are both headed “[e]xercises of discretion”.  These provisions, or appeals against decisions made under them, do not arise in the present case, and we do not address them.

The Court of Appeal intentionally disclaimed any change to the test on appeal from decisions about post-trial bail under ss 13 and 14.   It follows that the previous Court of Appeal approach remains in force in relation to bail appeals from ss 13 and 14 of the Bail Act 2000.  And that approach said that appeals are to be treated as appeals against a discretion.  You can see this approach in action in R v Hertnon [2009] NZCA 518 at [9] and R v Leone [2009] NZCA 325, (2009) 24 CRNZ 231 at [12].

Despite this, since T v R the High Court has opted to apply the T v R approach to appeals under ss 13 and 14.  The High Court has not done so blindly.  In D v Police [2018] NZHC 628 at [7], Palmer J set out reasoning as to why the Court of Appeal’s holding in T v R should apply equally to appeals under ss 13 and 14.  Other judges have adopted and referred to Palmer J’s reasoning (see T v Police [2018] NZHC 1039 at [11]).  Other judges have simply applied the T v R test without consideration of the differences (see P v Police [2018] NZHC 694 at [7]).

It’s also important to be clear what the High Court’s approach is.  There is no attempt to distinguish these cases on the facts in a time-honoured and well-accepted lower court technique of dodging binding authority.  The issue here is a legal test.  There is no getting around it by building up a plausible case for distinguishing an individual case on the facts.  The legal test has to be the same in every appeal against a post-trial bail decision.

His Honour Justice Palmer’s reasoning may well be correct (I think there are meaningful differences relating to post-trial bail that may warrant a different approach but that’s not the point of this post).  Certainly, I think the Court of Appeal would agree with his Honour, if the Court’s comments in T v R are any indication, so on that basis my view on the merits is unlikely to be vindicated.

But the difficulty with the High Court’s approach is that the Court of Appeal has not in fact overturned its previous rulings on the test for bail appeals under ss 13-14.  And it doesn’t matter what the Court of Appeal might say now if it was asked; it matters what its last pronouncement on the matter was.  And the Court of Appeal’s last pronouncement on the matter is the opposite of what the High Court is doing.

It’s an interesting phenomenon where it seems that High Court judges are going on what I accept is a clearly telegraphed intention by the Court of Appeal, rather than following binding Court of Appeal decisions as to the test on appeal for post-trial bail decisions.  My modest suggestion though is that second-guessing binding authority based on the Court of Appeal’s current vibe is not how a court hierarchy works.  That is especially so where the Court of Appeal took the trouble in T v R to disclaim any suggestion it was pronouncing on appeals under ss 13 and 14.

And the High Court’s rewriting of the ss 13 and 14 test simply compounds the problem.  As long as a High Court Judge fudges the test then the matter is unlikely to get to the Court of Appeal for an actual reversal.

All of which is to say I better get started on drawing up my own list of Court of Appeal decisions that I don’t want the High Court to follow.

 

(NB: sorry for the lack of links and the anonymisation of these decisions that makes the  references a mess of letters.  Quite rightly, bail decisions are suppressed until final determination, and I don’t know which of these cases have been determined finally.)

A short rant of incoherent thoughts on the Taylor costs decision

There are few things lawyers like more than saying “well, there’s a very good policy reason for the outcome”.

So it is that there is a very good policy reason for limitation periods for civil claims, meaning that Mariya Taylor’s civil claim against Robert Roper and the New Zealand Defence Force was time-barred.

So it is that there is a very good policy reason for barring personal injury claims in New Zealand meaning that Ms Taylor could not claim compensatory damages.

And so it is with costs, the most recent decision, where there is a very good policy reason why costs should not be the way that a plaintiff defeated in battle can win the war.

The difficulty with the line, though, is that when one has to deploy it so often that it becomes a mantra or a football chant it loses its persuasive power.  The sock of justice is exposed as mainly darn.  And while it still functions as a sock it is one that no one much wants to wear.

I agree with Edwards J’s costs decision in the Taylor v Roper case.  I like to think I would have ruled the same way and then coped with the self-loathing that followed.  Legislated costs schemes and appellate rulings are spiderwebs that catch first-instance judges.  In addition, the 50% reduction in costs that Edwards J ordered was, I think, extremely high, and an instance of a judge doing all that she could within the boundaries set by others.

But fuck me if it’s still not a shitty outcome.

I put my faith in very good policy reasons.  I put my faith in High Court judges.  And I put my faith in not letting the emotion of the moment lead us into unprincipled outcomes against persons who are rightly disliked.  Tough outcomes like this make me think we need to find some different very good policy reasons though.  As was almost said in A Man For All Seasons: it profits a man nothing to give his soul for the whole world … but for Part 14 of the High Court Rules?

And on days like this, where very good policy reasons carry the day, perhaps it is consolation to remember the words of Sir Clinton Roper who for years sat in the High Court at Christchurch: “Bugger the law.  Let’s have a bit of justice.”

Strictly Obiter’s quiz for the recently-returned-to-work

Most of these can be Googled.  Try not to.

 

Which famous New Zealand case:

  • Featured a handsome German Shepherd named Ben?
  • Was declared the worst New Zealand Supreme Court decision in an article by Jessica Palmer and Andrew Geddis?
  • Saw a Latvian widow “mistakenly” sell land to her milkman?
  • Featured a simple nullity?
  • Took so long that the Ministry of Justice took out a life insurance policy on the judge hearing it?

 

Which (current or former) Chief Justice of New Zealand:

  • Died at sea?
  • Was Premier of New Zealand?
  • Shared a name with a famous Saturday Night Live alum?
  • Was the last Chief Justice to serve in World War 2?
  • Had a Masters from Stanford?

 

Explain under what circumstances a High Court Judge could give a minority decision, with the majority decision being given by people without law degrees.  (EDIT: extreme bonus points if you can do this because my proposed answer has been debunked.)

 

How many current High Court judges (including those in the appellate courts):

  • Were formerly Associate Judges?
  • Were formerly District Court Judges?
  • Were formerly Law Commissioners?

 

Are there more High Court judges (including those in the appellate courts) currently on the bench who used to hold warrants as Crown solicitors, or who were formerly partners at Russell McVeagh?

 

Solve these cryptic crossword clues:

  • Milne’s Robin can’t be beat? He’s on the bench. (11,7)
  • A colloquial winner hesitates then gives brief thank you for the impermissible litigation funding. (9)
  • Court is seen when reverse father joins the sound of bells. (6)
  • Two Dams Hewn for justice. (6,5)
  • Junior royals take in subcontinent’s cricket league and reveal Lands’ outcome. (9)
  • Holding proportion. (5)

 

Put these statutes in order from smallest number of sections to largest number of sections (counting only solely-numbered sections ie. s 30 counts, s 30A does not count).

  • Evidence Act 2006
  • Crimes Act 1961
  • Interpretation Act 1999

 

Name as many New Zealand Queen’s Counsel who have taken silk from 2013 onwards as you can.  Write as many as you can/want but be sure they’re correct.  When you want to stop, do so.  Then check your answers.  If all right, you get the same points as your number of answers.  If you get just one wrong, then you get no points.

 

What was the last year to have only one volume of the New Zealand Law Reports?

 

For years the leading textbook on the law of contract in New Zealand was Burrows, Finn and Todd, but now (some of) the authors have changed.  What are the surnames of the three authors of the latest version?

 

What is the name of the High Court (or former Supreme Court) judge in New Zealand who held their position for the shortest period of time?

 

Name a New Zealand judgment with a measurement of length in the title (bonus point if you get one that I haven’t thought of).

 

What bench in New Zealand wears blue robes?

 

Austin Nichols & Co Ltd v Stichting Lodestar is a frequently cited case in New Zealand for the principles of a general appeal.  What is a stichting?

 

Which two Crown Solicitor’s offices do not have a website for their law firm? (Name the regions.)

 

What word or words link?

  • A current High Court judge and a seminal case on “regall authority”.
  • A present-day dean of a New Zealand law school and a former Prime Minister.
  • The leading case on sentencing discounts for guilty pleas and a famous mountain.
  • A 2016 film set in the DC Universe and a group of Legislative Council members appointed in 1950.
  • The first President of the permanent Court of Appeal and the office of the Crown Solicitor at Timaru.

 

The answers are here!

Moot problems what I done wrote

I wrote a bunch of moot problems this year for various groups.  They are posted below and you are welcome to use them with no attribution and free of charge.  I wrote guides for judges for the first two problems, and you can message me on Twitter if you want those.

I have confirmed with the various groups that I can do with them now what I want, including distribute them.  Alternatively, feel free to take the underlying issues and adapt the problems as you see fit.  PDFs should be able to be downloaded at the links below.

 

NZLS Young Lawyers Mooting Competition moot problem

Issue One: the meaning of “use” in the offence of dishonest use of a document.

Issue Two: the threshold for making enquiries of jury deliberations post-trial under s 76 of the Evidence Act 2006.

 

Auckland Womens Lawyers Association moot problem

Issue One: whether certain diversion agreements under the Police Adult Diversion Scheme are lawful in light of Osborne v Worksafe New Zealand [2017] NZSC 175 (see also this post).

Issue Two: name suppression following the granting of diversion to a young offender.

 

University of Auckland LAWS452 Appellate Advocacy practise moot problem

Single issue: when does litigation privilege expire?

 

University of Auckland LAWS452 Appellate Advocacy assessment moot problem

Issue One: the enforceability of a no-oral-modification clause in light of the UK Supreme Court’s decision in Rock Advertising v MWB Business Exchange Centres Ltd [2018] UKSC 24 (problem predicated on difference in approach between Lord Sumption and Lord Briggs).

Issue Two: whether consideration required for a variation of a contract and whether receipt of a practical benefit is good consideration.

Leave judgment granting appeal direct to Supreme Court.

There is no High Court in Whanganui

Whanganui Court
Not quite all there – the Whanganui Courthouse

In this post I split the hair of an angel dancing on the head of a pin to argue that there is no High Court in Whanganui.

There is a building.  From the picture above it seems the architects liked pebble dash.

Offices of the High Court are established in places either because they had in fact been established and later statutes continued them in a legal sense, or because they were established by statute.  A person might ask why there is no High Court in Mosgiel.  The reason, at least in modern times, is that an office of the High Court has not been established in Mosgiel.

Section 11 of the Senior Courts Act 2016 provides:

Section11.JPG

Give a notice in the Gazette, and you’ve got yourself a High Court, Mosgiel Registry.  Similarly, give a notice saying that the High Court in Wellington is abolished, and there is no longer a High Court in Wellington.  Naturally, it doesn’t change any physical structures.

For the time period that we are interested in, the establishment and abolition of High Court offices was governed by s 23A of the Judicature Act 1908, which is in largely similar terms to s 11 above.

There was a High Court in Wanganui.  The weak point in this argument is that I can’t find the documents establishing it in the first place.  It seems clear there wasn’t one originally.  R v Robinson Coupe from 1861 was a perjury trial in the Wellington Supreme Court that stemmed from false evidence in the Wanganui Magistrates Court.  The implication is that there was no Supreme Court at the time in Wanganui.

But it seems clear there was one.  By 1884 there was a Supreme Court hearing in Wanganui appearing in the New Zealand Law Reports – National Bank v National Mortgage and Agency Company (1885) 3 NZLR 257 (SC):

Wanganui HC
We’re off to Wanganui!

And since then there have been any number of decisions out of the Supreme Court and then the High Court at Wanganui.

Except Wanganui is not Wanganui any more.  It is Whanganui.  And it has been since 19 December 2015 when the Minister of Land Information accepted the recommendation of the New Zealand Geographic Board and gazetted the change.  This replaced an earlier change where the official name was both Wanganui and Whanganui.  The change is only one letter (in English, adding an H, in Māori changing the W to a Wh).  But the quality of the change is akin to a complete renaming.  The difference is one of degree only.  (A further technicality is that there is no city of Whanganui, the town takes its name from the district of Whanganui, which is what was changed in 2015.)

But, and I am slowly getting to the point, the High Court office was never abolished in Wanganui and re-established in Whanganui in 2015 when the name officially changed.  And no one has done it since.  That means the earlier High Court office at Wanganui continues to exist (in a legal sense).  It doesn’t matter that they are the same physical buildings.  If Auckland was renamed Obiterville, we would still have to refer to the High Court at Auckland until an Obiterville office was established.  The difference between Wanganui and Whanganui is small but it exists.

Of course, the registry currently purports to be the Whanganui registry:

Whanganui Registry

 

But the judicial branch has to do that because of s 32 of the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008 requires all government agencies to use the official name for a place:

Section 32.JPG

And if you track back through the definitions of this Act, which links to the definitions in the Public Records Act 2005, that ends up applying to the judicial branch and court judgments.

So the court is required to refer to the Whanganui registry, even though that has not been established.  The fact that the name appears on judgments is no indication that the office of the Court exists.

The result is that, if you squint, and take many leaps of faith, in a kinda-sort-of way there is no High Court in Whanganui, but there remains a High Court office in Wanganui.  Or at least that’s what I’m claiming.

 

Fact-checking myself, or, the many reasons why this argument is a bit shit

It doesn’t really account for any possible semantic difference between registries and offices.  The High Court Rules 2016 refer to multiple registries, but do not use the term “office”.  Likewise the Senior Courts Act 2016 refers to offices but not registries.  And while the Ministry of Justice website treats as synonymous registry with office, it is possible that there is only one unified “office” of the High Court nationwide, with multiple registries.

It presupposes that a High Court at Wanganui was established in a legal sense (likely in the 19th century).  Which to be fair I think is likely, but without an exhaustive search through hard copy Gazette records is going to be hard to establish.

The whole “H” in Whanganui thing makes it all seems a bit white supremacist-adjacent when it’s only meant to be legal pedantry.

 

 

Supreme Court Guess Who, or who will hear a Lundy Supreme Court appeal?

Guess Who Board2

This week the Court of Appeal released its decision in Lundy v R [2018] NZCA 410 in which it said that expert evidence about mRNA that was admitted at Mr Lundy’s retrial was inadmissible.  That judgment mentioned, but did not dwell on, the fact that a differently constituted Court of Appeal had ruled the evidence admissible in an earlier pre-trial admissibility challenge (Lundy v R [2014] NZCA 576).  Awkward.

Regardless, said the latest incarnation of the Court of Appeal, the inadmissible evidence did not lead to a miscarriage of justice.  There was other evidence available to support a conviction.  It applied what is called “the proviso” and upheld Mr Lundy’s conviction.

Since then, there have been murmurings about an appeal to the Supreme Court.  I divert briefly here to say I’m not sure I immediately see on what grounds the Supreme Court would grant leave.  The two most likely grounds (and even then…) seem either to have another look at the proviso (although that seems reasonably well-settled), or else allow leave on the general miscarriage ground (but they’d probably want to restrict the points on which they allow argument rather than allow a complete rehearsal of all the points taken in the Court of Appeal).

Assuming an appeal is taken, and assuming leave is granted, who would hear the appeal?  The available pool of justices seems slim for the following reasons.

The current permanent Supreme Court bench is as follows:

  • Elias CJ
  • William Young J
  • Glazebrook J
  • O’Regan J
  • Ellen France J

Any appeal will be heard next year, at which point Elias CJ may well be retired (her Honour retires in March 2019), but she will presumably stay on as an acting Judge (and will be first off the rank for acting Judge according to this policy).

The three likely replacements for Elias CJ are:

  • Kós P
  • Winkelmann J
  • Williams J

And then remaining on the potential acting Judge rank are (in order):

  • Arnold J
  • McGrath J (he is listed on the Court website but it may not be updated.  He is not listed as an acting Judge in the front of the New Zealand Law Reports.)

Having set up our Guess Who board, let’s start eliminating contenders.  Remember, we need five to sit on a Supreme Court panel.  I am also assuming that having sat on a previous hearing will be enough for disqualification.  It may be that the Court takes a tougher line on disqualification.

Did your Supreme Court justice sit on the Privy Council board that allowed Mr Lundy’s appeal in [2013] UKPC 28, [2014] 2 NZLR 273?

Eliminate Elias CJ from contention.

Did your Supreme Court justice sit on the most recent Court of Appeal decision dismissing Mr Lundy’s appeal in [2018] NZCA 410?

Eliminate Winkelmann J from contention.

Did your Supreme Court justice determine that the mRNA evidence was admissible at pre-trial first instance on the retrial following the Privy Council decision?

Eliminate Kós P from contention.

Did your Supreme Court justice determine that the mRNA evidence was admissible at pre-trial appeal on the retrial following the Privy Council decision in [2014] NZCA 576?

Eliminate Ellen France J from contention (although she was in the minority that would have allowed the appeal).

Did your Supreme Court justice sit ALL THE WAY BACK IN 2002 on Mr Lundy’s first appeal to the Court of Appeal in (2002) 19 CRNZ 574 (CA)?

Eliminate Glazebrook and McGrath JJ from contention.

Do we have anyone left?

Who does that leave?  The best case scenario for available judges is that Williams J gets promoted to the Supreme Court following Elias CJ’s retirement.  The permanent members who can sit will then be William Young, O’Regan and Williams JJ.  Assuming Arnold J can still be drawn upon (his acting warrant lasts until 11 April 2019 but he might be authorised to sit on the proceeding), that makes four.

So it would seem likely that the Supreme Court would draw on the next most senior Court of Appeal justice (as per their stated policy online – although not expressly required by the Senior Courts Act 2016).  Except they can’t!  Because that is French J, who also sat in the [2014] NZCA 576 Lundy proceeding.  That leaves Miller J.

But worst case would be if Winkelmann J goes to the Supreme Court in place of Elias CJ.  That means that only William Young and O’Regan JJ can sit.  They can draft in Arnold J (again, assuming his warrant gets extended or he is otherwise authorised to sit).  Then Miller J comes in from the Court of Appeal to take it to four members.  But then the next two members of the Court of Appeal are not eligible – Cooper and Asher JJ both sat in the most recent Court of Appeal decision.  So Brown J could end up sitting on the Supreme Court for the hearing of any Lundy appeal.