2022 has been another year of unrelentingly grim challenges for us all: ramraids, violent protests at Parliament, more Covid cases than ever, a cost of living crisis, Capital Letter editorials. And, while there is still a month to go in this year, there is not a lot left in the tank of this tired hack. Time to start wrapping things up. 

It has been another tough year for the judiciary who continued to be accused of supporting a tyrannical government oblivious to human rights, at least so far as the Covid response goes. The irony being that as soon as a New Zealand judge actually does support a tyrannical regime their conscience tells them to quit after less than a fortnight in the role. Still, grim to reflect on the hard times judges have for retirement jobs these days. Robin Cooke went to the House of Lords. Thomas Gault became the captain of the Royal and Ancient Golf Club of St Andrews in Scotland. All William Young J could get was a part-time gig as a velvet glove to some iron fisted despots running an international arbitration centre, and he beat the Lowell Goddard shortest-time-in-role record by some months. None of this would happen if Stephen Mills KC was allowed to take judges sailing again.

In the workplace the trend of the year has been Quiet Quitting, which is when you resign your judicial warrant before the Judicial Conduct Commissioner can say anything. In the big firms there are about three solicitors with 4 years PQE left in the entire country. The rest are in the UK. (ARD and LXL – if you’re reading this, come back!)

We’ve had Make It 16, and Fitzgerald v Attorney-General and the Chisnall hearing. I think 2022 is what the 1990s must have been like. Every day you wake up and the Bill of Rights Act is being used in new and exciting ways. And also there’s a Cooke, Ellis, Gault, Thomas and Goddard on the bench. (To be clear, I was alive in the 1990s but East Taieri Preschool didn’t have a subscription to the NZLRs.)

Our Supreme Court has had to put up with the commentariat calling them judicial activists. This must come as a surprise to the judges – a group of people in their 50s and 60s with knighthoods and state pensions, who divide their time between the bench and the Koru Lounge. Even I – a perpetual disappointee when it comes to Supreme Court decisions – think that we can do better than throwing the old judicial activism label around. After all, you go to the Court of Appeal for error correction; you go to the Supreme Court for era correction. And while it’s true that recently the only thing surprising about a constitutional orthodoxy is that an appellate court has chosen to adhere to it, I would still like to see an improvement in the quality of our complaining about the Supreme Court in 2023. I will be auditing this.

Anti-mandate protesters at Parliament didn’t succeed in erecting a scaffold in front of the Court of Appeal but they did throw up a block of toilets. There’s a metaphor in there probably. Still, the Court of Appeal came through it okay despite being in the centre of the protests. Court of Appeal judges have long experience in ignoring  people who appear in front of them to make outlandish demands. The scaffold came later in the year; Cooper P succeeding where the protesters failed.

For more of Cooper P’s achievements you might like to read this.

Queen’s Counsel became King’s Counsel on the death of the Queen. Most of the rest of the legal system will carry on the same. For example, a change in monarchs won’t alter how serious crime is prosecuted. Most will be done by King Charles’ Crown Solicitors, and the rest will be done by King Charles’ panels. And that’s the only joke I have about that, except this photo:

 

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Time to hand out the gongs. Remember, one Strictly Obiter Law Award is worth three New Zealand Law Awards and is equivalent to a top ten ranking in the Lawfuel Power List.

Best root and branch reform of the year

Sometimes you just need some good old-fashioned constitutional spadework.

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Air New Zealand Safety Video Award for Best Legal Procedure

The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. In the event of a judicial conduct investigation, emergency escape path lighting will guide you to the nearest exit. 

Two different judicial officers quit this year, scuppering a judicial conduct panel and a JCC investigation. It leaves us no wiser about judicial (mis)conduct in two incidents that were significant enough to warrant resignations. Our judicial system as the same level of accountability as I have when I sneak a third gingernut at supper. It’s not that judicial conduct panels are powerless to do something; it’s that they’re powerless to do anything.

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The Freedom Costs A Buck Oh-Five Award

The Serious Fraud Office. They say you can’t put a price on privacy, but that didn’t stop the Crown from trying in the election donations trial. Having charged the defendants with obtaining a benefit by deception, the Crown needed to prove what that benefit was, and that it was worth over $1,000. One limb of the Crown’s case was that the benefit was “freedom from scrutiny”. But what’s that worth? Gault J says not provably more than $1000 in this excerpt from R v Zhang [2022] NZHC 2541:

Still, it’s good news for anyone who succeeds in establishing a privacy breach by the SFO in the future. You can cite this decision as agreement by the SFO that your privacy was worth at least $1000. 

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Judicial photo of the year that is not the Chief Justice and Minister of Justice planting a tree

Yes, it’s Goddard J in a virtual reality headset. The Member of Parliament for Molesworth Street visited the National University of Singapore. Technology under development there will enable Court of Appeal judges to better understand District Court practice. 

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Law reform of the year

Occasionally, very occasionally, having a good old moan on Twitter can achieve something. 

That (and a few more tweets on the subject) were sent off into the ether. Then, six days later, a new Court of Appeal Civil Practice Note appeared, with a new clause inserted. 

A little bit post hoc ergo propter hoc here. But I’m claiming it as a win! The system works!

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Euphemism of the year

The reason given for the withdrawal of legislation to reform journalistic source protection: “insurmountable drafting issues“. Since then, this has been my go-to excuse whenever my bosses chase work from me. 

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Strenuous denial of the year

Marc Corlett KC giving the defence opening statement in the election donations trial. This was a judge-alone trial! If this had to be elevated for a jury it would have blown out the windows in the courtroom.

As reported by The Spinoff:

Marc Corlett QC, who is acting for the man who purchased the paintings related to the Labour donations case, said the SFO case appeared to have been “reverse-engineered to meet a preconceived investigative assumption that there must be a parallel ‘structure’ between the Labour Party and National Party cases”. The prosecution, he said, was asking the court to “draw inferences … that cannot be drawn without rabid speculation and a disregard of the burden of proof and the presumption of innocence”. The case against his client, he contended, was “the product of a fertile investigative imagination which has harnessed the innocuous and ridden the high horse of confirmation bias to a land of fantastical conclusion”.

The case, Corlett continued, was “a theory in search of evidence … animated by predetermination, fuelled by speculation, and dependent on some Eurocentric, cringe-inducing cultural assumptions.” He pledged that the substantive trial meant “it no longer suffices for the Crown to throw up fairy dust and say – ‘see, this evidence is consistent with our fertile imagination of what [the suppressed defendant] might have done’”. 

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Judicial photo of the year that is not the Chief Justice and Minister of Justice planting a tree or Goddard J wearing a VR headset

You can’t tell me this guy doesn’t run the 2.15pm sentencing list in Invercargill District Court. This bloke has presided over more livestreamed trials this year than every High Court judge combined. More likely to be subject to an adverse finding by a judicial conduct panel than a real judge. 

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New human right of the year

A big year for rights discourse. As s 28 of the New Zealand Bill of Rights Act 1990 reminds us: “An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.”

Taking that message to heart was an anti-mandate protester arrested at a Rotorua restaurant, as reported by the New Zealand Herald:

As Desmond Tutu once said, “I am not interested in picking up crumbs of compassion thrown from the table of someone who considers himself my master. I want the full menu of rights.”

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Law Firm That Most Sounds Like Something From The Edmonds Cookbook Circa 1950

Woodward Chrisp

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The “Law Is Just Common Sense, Really” Medal

Pere v Attorney-General [2022] NZHC 1069, [2022] 2 NZLR 725 for “establishing” that being shot in the back while detained in Police custody breaches the detainee’s right to be “treated with humanity and with respect for the inherent dignity of the person”.

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Triumph of monism over dualism of the year

The Freedom and Rights Coalition’s People’s Court. A movement virulently against the strawman of United Nations control purported oversee the direct domestic application of an International Criminal Court trial in the grounds of Parliament. 

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Sovereign citizen of the year

Connor the Dog. In James v District Court at Whanganui [2022] NZHC 2196 a Sovereign citizen argued that his dog was a Sovereign citizen. 

For more on Sovereign citizens you might like to read this piece.

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Supreme Court decision of the year

Harding and Berkland v R.

We’re being told that Harding and Berkland v R couldn’t be here due to insurmountable drafting issues, so to accept the award on its behalf is Attorney-General v Family First. 

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Twitter civil war of the year

Lecture recordings! Were you on the side of the coddled and the lazy, who would miss out on the benefits of coming to campus? Or were you on the side of the heartless and out of touch, with no idea of the pressures of modern life? Either way, you were in the wrong. Grim times for us all. Olive branches were fashioned into sharpened stakes. The uneasy truce holds to this day, but only because we’ve all agreed not to speak about it any more. 

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Worst legal argument of the year

Business New Zealand. Business NZ makes a complaint to the International Labour Organisation about the Fair Pay Agreement Bill. Then Business NZ publishes a document that says New Zealand is on a list of the worst case breaches of international labour treaties. Except…

Just absolutely terrible. Real “only read the headnote” stuff. 

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Judicial diversity award

Having a High Court bench made up from people of all backgrounds is important. They bring their own life experiences to the important business of judging. Like this in R v Fakaosilea [2022] NZHC 2984, where Campbell J knows that it’s possible to buy several ounces of cocaine in a few hours.

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May you survive until the end of year break, and may all your reserved judgments be delivered before Christmas. 

 

Ten headlines. Can you tell which ones are about the Supreme Court of New Zealand?

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Question 1

Answer: This one is about the Supreme Court. There were a few clues here. “Make It 16” is a recent Supreme Court decision, and the headline in fact uses the words “Supreme Court”. 

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Question 2

Answer: This one is also about the Supreme Court. Part of the Supreme Court’s role is to “scrutinise” convictions in the context of appeals. The headline also uses the words “Supreme Court”. 

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Question 3

Answer: This one is not about the Supreme Court. The Supreme Court’s role is to write reasoned judgments explaining their thinking, that is open to critique by any reader. They are not generally required to glue themselves to roads.

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Question 4

Answer: No, this isn’t a trick. Although it refers to only to the “Court”, this is still the Supreme Court. 

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Question 5

Answer: This one is a trick though. This *isn’t* the Supreme Court. Supreme Court judges have their pensions and the Judicial Conduct Commissioner to think about. 

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Question 6

Answer: While the Supreme Court sometimes rules against the Crown it does so in accordance with the law and its constitutional role. It does not use cake.

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Question 7

Answer: It is true that the judges of the Supreme Court are in their 50s and 60s, but we got you again! This is not about the Supreme Court.

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Question 8

Answer: Yes! The Supreme Court! That’s right. We’re laughing, we’re learning. 

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Question 9

Answer: Again, this refers to a ruling by a group of people with knighthoods paid hundreds of thousands of dollars by the state. 

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Question 10

Answer: Something of a line call, depending on whether you are subject to a civil restraint order or not, but this is not about the Supreme Court.

 

There is a lot to like in Fitzgerald v Attorney-General [2022] NZHC 2465, which is otherwise a sort of Transformers Movie of judgments: lots of explosions, several parts that I couldn’t follow, and liable to result in more sequels than anyone wants. 

I’m pleased that Mr Fitzgerald got compensation. I like the strong assertion of the Bill of Rights Act over prosecutors’ conduct. Either Mr Fitzgerald’s counsel or Ellis J or both did a really good job of laying out a path to make the question of the charging decision a question of law with a right and wrong answer, rather than a question of discretion. 

But (through no fault of Ellis J) the judgment doesn’t stand on the shoulders of giants. Instead those giants’ shoulders cast looming shadows which mean the judgment has to twist in weird directions all in search of some daylight. Daylight in this tortured metaphor being the right outcome (compensation) but not the right answer (why that compensation is being paid).

There are two giants. The first is the three strikes regime (and I use that word advisedly) itself. They say hard cases make bad law but bad law also makes for hard cases. When Parliament takes away judicial discretion for sentencing the judiciary will first maximise whatever small levers they’ve been left with. That saw courts finding manifest injustice on every third strike sentencing except one, and excluding one or two others where a sentence of preventive detention was imposed instead. Then the courts will create levers of their own. That saw courts finding ways to reduce sentence length precisely in response to the effects of three strikes (which is extraordinary): see Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49). Then the courts will go further. In Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 the Supreme Court found a way to say that in some cases a court could simply not apply an act of parliament. That is more than extraordinary. And Parliament and the Crown are now stuck with that ruling on the books. Maybe it won’t be used again – maybe it’s just a reaction to three strikes. But what a colossal strategic error by Parliament to push things so far that they get in writing a judgment that says maybe we don’t have to listen to you. Lord Cooke talked about deep lying common law rights. In the 2020s, the message from the courts is fuck around and find out. 

But even with the New Zealand judiciary operating at times as a sort of partisan resistance, there was only so much that could be done. Courts continued to apply three strikes until a change of government pulled the plug. There is a human cost to three strikes. That cost is borne by the persons detained in breach of their rights, and by their victims who have their individual cases turned into causes célèbre where offenders are the main characters. Now the courts are conducting an accounting for the rights breaches along the way. Rightly, there is a strong moral imperative to do something. 

The second giant casting a long shadow is Chapman v Attorney-General [2010] NZSC 110, [2012] 1 NZLR 462. No damages for breaches of the Bill of Rights Act for judicial acts. Judicial acts like imposing a sentence that is so long that it breaches ss 9 and 22 of Bill of Rights Act. Maybe you agree with the policy reasons behind the holding in Chapman, maybe you don’t (and the UN does not). But it has distorted rights litigation in this way: the Crown likes Chapman when it lets it say “well it wasn’t really the executive that breached your rights, it was the judiciary, and Chapman says there’s no cause of action, so that’s the answer”. And, in turn, that requires plaintiffs to go wide and try to explain why the breach was actually the result of an act of the executive. Sometimes that works (Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR 206) and sometimes it doesn’t (Putua v Attorney-General [2022] NZHC 2277). Both in Putua and here in Fitzgerald Ellis J has been valiantly trying to get out from under Chapman on the facts. And anyone doing any thinking about this Fitzgerald judgment should read Putua – it’s a good companion piece.

Mr Fitzgerald’s damages claim emerges thus. His rights were breached. So says the Supreme Court. In fact, the Supreme Court says the judge ought not to have sentenced him to his seven year sentence. Something needs to be done, but as long as Chapman is the law no one’s allowed to say it’s the court’s fault for sentencing him to a long sentence. 

In her Honour’s judgment, Ellis J sets out how the charging decision was unlawful. I quite like the reasoning here. And I think we have an underdeveloped jurisprudence of how administrative law principles inform criminal law in general, so really like this judgment as a step forward. I hope there will be more interesting case law that comes out of the increased visibility of the justiciability of charging decisions.

Justice Ellis sets out why the prosecutor was under a legal duty, and how it was breached. The duty is articulated as an obligation “to exercise their prosecutorial discretion in a way that avoided the risk of Mr Fitzgerald becoming subject to a disproportionately severe punishment on sentencing” (at [169(b)]). And that duty was breached by laying and maintaining the charge (and possibly (I read the judgment as saying) advocating for the sentence).

But if that’s how the duty is articulated, and that is how the breach is framed, then how does vindication of the corresponding right translate to damages for Mr Fitzgerald’s punishment or detention? By exposing Mr Fitzgerald to the risk of detention, the Crown prosecutor did not create his detention. By exposing Mr Fitzgerald to the risk that he would become subject to a disproportionately severe punishment, the Crown did not in fact impose on him such a punishment. The duty that Ellis J articulates ends with the words “on sentencing”, but then the judgment suggests sentencing is some mechanical process with a mechanical result. 

A judge of the High Court decided what sentence to impose on Mr Fitzgerald. The Supreme Court has set out that the judge could in fact depart from the Act and did not need to impose the sentence. I read this latest judgment as placing weight on the fact that the prosecutor instituted the process – that they set in process a motion that culminated in sentencing. And it’s for that reason that the Crown is responsible for the detention that resulted. 

That seems to minimise the agency of High Court judges carrying out sentencing. When passing sentence, judges do not simply do what the Crown tells them. Mantra-like we hear that sentencing is quintessentially a judicial function. But if it’s a judicial function then Chapman will swing in to remove the ability to award damages. To get the result, it has to be the prosecutor’s fault and so, necessarily, the sentencing judge’s decision about how long the sentence will be and the sentencing judge signing the warrant of commitment that authorises detention fade into the background like Homer Simpson into a hedge.

Justice Ellis was willing to accept that there would be a twin responsibility: both the prosecutor and the sentencing judge both had duties to avoid breaching rights. I agree. But only one of those two has the power to impose detention. And, even if the responsibility had to be shared, why is the entire damages award borne by the Crown prosecutor? The answer to that might lie in the fact that Baigent damages aim to vindicate the right, but I think that simply emphasises the question of what right did the prosecutor breach – not the right to be free from detention!

None of this is to step away from a finding that the prosecutor’s decision may be unlawful in its own terms. But the answer to that is a declaration in standard JR but probably not Bill of Rights Act terms. And remember the Supreme Court did not question the correctness of Mr Fitzgerald’s conviction, so there is no ability for the High Court here to collaterally undermine the conviction by going all in on the charging decision. The end result of this judgment is the prosecutor must pay for deciding to lay a charge that led to a safe conviction. 

And that really leads to the hint of a strange double standard in all of this. I like Ellis J’s judgment as a call to arms to the Crown from the judiciary: “just as the judiciary did its part in trying to mitigate the rights-breaching aspects of three strikes, prosecutors ought to have been doing the same thing. We will follow the consequences of the Supreme Court’s decision in Fitzgerald wherever they lead”. But that ‘we all have to play our part’ approach sits unhappily with Chapman. We all have to play our part but it can never be the judiciary’s fault. That is a part-time commitment to the Bill of Rights Act. Chapman prevents the right answer: Mr Fitzgerald’s right to be free from arbitrary detention was breached by the long third strike sentence. That sentence was imposed by a court, but that won’t stop this court from awarding Bill of Rights Act damages because what matters is vindicating rights where they are breached. And also, bloody hell, prosecutors should have been a lot more awake about this too. 

I don’t like the reasoning in Fitzgerald because it reaches too far to dodge Chapman. I like the outcome in that compensation is awarded for a rights breach. But the right that was vindicated for the damage in this case was not breached by the acts complained about. With Chapman as the law, there was no viable path to awarding Bill of Rights Act compensation. The issue is not Fitzgerald, it is not Ellis J (who is bound by Chapman and whose task was to deal with pleadings framed in light of Chapman), it is not how Mr Fitzgerald or the Crown ran their cases, it is not even really three strikes though that set a lot of this in train. It is about how Chapman has distorted how rights litigation is pleaded, argued, and decided. 

Anyway, I didn’t mind Transformers. But something’s gotta give before we end up with a Bumblebee.

The great man theory might be on the run in history but it flourishes still in the law where judges and silks are heroes and villains (or villains and heroes). In a world of Power Lists and Lawyers of the Year, we risk overlooking those whose roles do not come with pedestals.

Vicki McCall did not have a pedestal. She didn’t need one to be one of the most effective, knowledgeable, and kind administrative lawyers in the country.

As Crown Counsel she acted in high profile cases and advised the more coercive arms of the state. The cases were difficult and sensitive: the type where, for the Crown, any defeat required careful reflection and any success restraint and modesty. In this she was a role model and the embodiment of a Crown lawyer.

She held a deep, deep knowledge of constitutional and administrative law, and the Bill of Rights Act. I favour Smith over Joseph, but McCall surpassed them both. To that she also brought a litigator’s eye. “You’re going to need some evidence on that by the time you get to the section 5 analysis,” she once told me in response to hearing my theory of the case. I dutifully returned to edit my draft affidavits. You disregarded Vicki’s advice at your peril.

People, I think, underestimate the internal commitment of government to the rule of law. But that internal commitment exists only because of principled lawyers like Vicki: someone who felt deeply the responsibility of a Crown lawyer to see the Crown conducts itself lawfully. Find the fun where you can, but standards Will Not Slide. The hard work that required was met with a rolling up of the sleeves. And she matched her determination with a game ruefulness about Crown legal practice born of pummellings in the senior courts. Getting to learn from someone who handled difficult briefs so philosophically, I wondered whether I ever got the balance quite right. In a militant moment I once ventured to her that the Crown isn’t expected to be a punching bag. She replied with a deadpan that “Those are the words of someone who hasn’t appeared in the Court of Appeal very much.”

She was a mentor and a friend and I was not alone in benefitting from her guidance. Many will describe in similar terms her quiet support and kind words. A host of young Crown lawyers will be proud to tell you they learned from Vicki McCall. That same host mourns her now.

Her patience and kindness extended to always being available for a panicked phone call. Does constabulary independence mean the Solicitor-General can’t dictate the conduct of Police civil litigation? What sort of s 5 analysis do you need to do when the right already has an internal modifier? What’s the New Zealand equivalent of Miss Behavin’? I bet Vicki will know. She once called me to ask a question about some trivial corner of the law and I lunged for the chance to pay back a small part of the massive professional debt I owed her. When I left Crown Law I began working off the rest one coffee catch up at a time.

She had an up-to-date repository of pop-culture references and a sense of humour anchored in classic Simpsons lines. Privately she would describe dud decisions with a vocabulary both inventive and robust. She disfavoured air travel and would fly with an innocuous-looking Pump bottle that just might have been full of G&T. A hardcase for hard cases. You would have liked her.

From Rangitoto College, the University of Auckland, then clerking for McGrath J in the Court of Appeal and Supreme Court. Harvard and giant American law firms. Then Russell McVeagh and Crown Law. More lay ahead. I wish I had been able to say this to her at her swearing-in one day. It would have been an honour to appear in front of McCall J.

We don’t need the great man theory in law. And most times if you get famous as a Crown lawyer you’ve probably done something very wrong. But we owe it to our best to share their stories and mark their passing. Vicki McCall was one of our best. My thoughts are with her family and friends. I will miss her very much.

Overseas Tankship (UK) Ltd v The Miller Steamship Co (The Wagon Mound No 2)

Our freedom to pump engine oil into harbours is being eroded.

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The Case of Proclamations

Court sides with property developers.

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Finnigan v New Zealand Rugby Football Union 

Limiting the All Blacks’ freedom of expression is the real apartheid.

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R v David Bain

Successful defence shows the importance of part-time paper routes for children.

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R v Mark Lundy

Defence calls for upgrade to New Zealand’s roading network.

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Vector Gas v Bay of Plenty Energy

Guidance for energy industry will stand the test of time.

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R v Dudley and Stephens

Cabin boy lobby achieves court success.

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CREEDNZ v Governor-General

Aluminium smelters are guaranteed by Magna Carta

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Rylands v Fletcher

Reservoir builders and mine owners: why can’t they both win?

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Every other case from history

This is the free speech issue of our generation.

The question I am asked most often as President of the Court of Appeal is what happened to the tall guy with the big glasses and a penchant for a chunky pinstripe? But the question I am asked second most often is what is a guideline judgment?

Guideline judgments are the means by which this Court tries to give guidance to courts below, especially in the area of criminal sentencing. A guideline judgment has to be followed by the courts below unlike our ordinary judgments which, well, I guess our ordinary judgments have to be followed too. But a guideline judgment can be relevant in cases other than the appeal it is purporting to decide. Whereas we wouldn’t expect courts below to think that any of our other judgments might be relev- hmmm.

Actually I suppose it’s not about the fact of needing to follow it but more to do with the degree a court below needs to do so. We really really mean it when we write a guideline judgment. You can see that by the way we urge courts to apply them flexibly and we encourage departure and no you’re right that’s the opposite of needing to follow them. Now that I come to think about it we only seem to encourage departure from guideline judgments. I’ve never thought about it that way.

What about this? Guideline judgments ensure consistency among first instance sentencing decisions by identifying levels of sentencing often with reference to aggravating factors. Consistency is a tricky thing in law and you need to treat like cases alike. That’s why guideline judgments eliminate the need to look at like cases and instead look at one judgment that only deals with matters in the abstract.

Hmmm…

Well, guideline judgments have bands.

Except when they don’t, like in Hessell.

And except when non-guideline judgments have bands, like Shramka.

They have five judges.

Okay, they have five judges if you don’t include Fatu or Wallace.

The Court of Appeal does them.

Except when the Supreme Court did one in Hessell.

Look, sentencing is quintessentially a judicial function and guideline judgments are a vital part of the- no, I forgot about the Sentencing Act.

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Fine, we shout obiter dicta through a megaphone then allow any appeal where it hasn’t been treated like ratio.

And they all get in the NZLRs.

I think.

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Yes, they all get in the NZLRs.

I hope that cleared things up.

Not relevant, but still admissible.

In a month of Donoghue v Stevenson fever (and the even-worse snail trutherism) here are some things that caught my eye. No Depp v Heard. No Wagatha Christie. No leading Supreme Court decisions. Just a few bits and pieces.

 

Another victory for Trans-Tasman Resources

You may recall Trans-Tasman Resources Ltd v Just About Everyone Else [2021] NZSC 127, [2021] 1 NZLR 801, a Supreme Court decision in a case that started off about seabed mining but ended up being about high constitutional principle. You may also recall Trans-Tasman Resources from this Media Council ruling, where the Council pinged the Taranaki Daily News for uncritically repeating Trans-Tasman’s claim that its defeats in the High Court and Court of Appeal were actually victories. In much the same vein, on 19 May 2022, the Supreme Court decided the latest victory for Trans-Tasman; ordering it to pay $155,000 in costs. 

 

Holding up the holding up of traffic

As a semi-occasional visitor to Wellington who knows that no trip is complete without sitting in traffic on Cobham Drive, it seems extremely unlikely to think that any change to current arrangements could make things worse. Still, Wellington International Airport Ltd (WIAL) had taken up the cudgels against planned works for an “at-grade” pedestrian crossing on Cobham Drive. WIAL applied for interim orders under the Judicial Review Procedure Act 2016; a move that didn’t stop Grice J referring to interim injunctions. Justice Grice rejected the claim, in a decision with so many grounds it was approaching the kitchen sink rather than on the way to the Basin. The word “standing” didn’t appear anywhere in the 235 paragraph decision, despite Wellington International Airport Ltd having about the same standing as any resident of Miramar Peninsula to complain about traffic. It’s not like the pedestrian crossing was going to be installed across the bloody runway. WIAL later discontinued its substantive claim but not before proving my suspicion that we’re all just Weekend At Bernie’s-ing the doctrine of standing. 

 

A judgment for people who listen to their podcasts on 1.5x speed

Not on NZLII yet, but on Westlaw NZ, Smartpay Ltd v Kumar [2022] NZHC 997 has Downs J on top form, rocketing through a commercial dispute with an economy of language and maximum of force that I genuinely think is beautiful to read. It includes the razor-sharp line at [49]: “This argument is ingenious. And wrong.” [[chef’s kiss emoji]]

 

Dog line-up!

Seven of these dogs are good boys or girls. The eighth was suspected of an attack. But the visual identification procedure was found wanting, and so the charge was dismissed. I’m a cat person, so it’s not my place to criticise, but if dog is man’s best friend then technically that’s recognition evidence, and so there’d be no need for a visual identification procedure. 

 

Conduct that I’d hit the roof about if some litigant tried this shit: May edition

This story from Stuff about Business NZ:

The BusinessNZ list, which put New Zealand alongside Afghanistan, Nigeria, and China, had the title “‘Worst cases’ breaches of international labour treaties”.

But the original ILO title for the list was “Preliminary list of cases as submitted by the social partners Committee on the Application of Standards”.

BusinessNZ, employment relations policy manager Paul Mackay,​ admitted BusinessNZ changed the name of the list.

But he said it was not a mischaracterisation to say New Zealand was in breach of international labour law, when the ILO had made no such decision.

“It doesn’t have to be a past tense breach. An intention to breach is just as bad,” Mackay​ said.

Call the pre-cogs!

 

Strong benches

The Court of Appeal decided Watson v R [2022] NZCA 204 confirming that if the executive chooses to exercise the prerogative of mercy to send a matter back to the courts then the courts will do what they like with it regardless of the grounds on which it was referred. CS Lewis once observed that mercy detached from justice grows unmerciful, but he probably didn’t expect the New Zealand appellate courts to take that as encouragement to put another judicial claw into what the Court recognised is “distinctively an executive power” (at [16]). 

All of this is by-the-by though, because the judgment is notable for a more important reason: Kós P’s use of the term “strong panel” to describe a line-up of the House of Lords in R v Chard [1984] 1 AC 279 (HL) (Watson at [38]). A strong bench or a strong panel exists only where three conditions are satisfied: (1) the judgment supports your argument; (2) even though it was decided more than twenty-five years ago you recognise at least one of the judges in the line-up; and (3) you will not be taking questions about it at this time. It’s the same reason why, despite usually omitting judges’ names in my submissions, I strive to mention Tipping J or Sir Thomas Bingham MR if they wrote a decision on which I’m relying. 

Of course, if strong panels really did exist they would imply the existence of weak benches: line-ups of fumblers whose very presence would somehow mean the decision didn’t need to be followed. We may think that (indeed, we can probably name them), but decorum prevents us from saying it. 

 

Costermongers

The new textbook The Law of Costs in New Zealand was released this month. Costing just under 0.1 days costs at category 1, this new text promises guidance on an area of law that is predicated on being entirely at the discretion of judges. The book arrives cannily just before the Rules Committee promises to re-make large swathes of the costs regime, which guarantees a second edition. Doubling author royalties from LexisNexis will mean the authors will be able to splash out for an entire extra shot in their flat whites.

 

You don’t need a law degree for this: May edition

“Shooting somebody in custody in the absence of a justification is inconsistent with the minimum standards of detention arising from the duty to treat detainees with humanity, and with respect for their inherent dignity.” – Cooke J in Pere v Attorney-General [2022] NZHC 1069 at [42].

 

Other quotes

“Another under-explored question is the link between the purposes of sentencing and reality.” – Professor Kris Gledhill “Judges and Sentencing” in John Burrows and Jeremy Finn (eds) Challenge and Change – Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 326. Packed full  of entertainingly subversive sentencing arguments, hewing closely to the wording of the Sentencing Act. The chapter is a preview of every landmark sentencing case that will be heard over the next decade. All arguments waiting for their time to come. (Your author forgot he had ordered this book to be delivered at his much more talented wife’s chambers and has recently had to explain the purchase…)

“The defendant, having tried one ploy to evade paying what he owes, is now simply wriggling to find another.” – Judge Greig quoted by Palmer J in ICL Construction (2016) Ltd v Ian Roebuck Crane Hire Ltd [2022] NZHC 1047 at [2].

“In Mannix Cooke J observed that arguably there might be more ground for relaxing the cognate rule that a corporation has no right to file documents except by a solicitor. It seems to me that the case for relaxation of that restriction for access to justice reasons is even stronger today than it was in 1984 when Cooke J made that observation. But that issue should be determined in a suitable case following full argument.” – Goddard J indulging in some Mannix street preaching in Dokad Trustees Ltd v Auckland Council [2022] NZCA 177 at [20]. Footnote omitted. Incidentally, someone should ask Goddard J if he thinks Cooke, Somers and McMullin JJ was a “strong bench”.

In striking out Ms Sixtus’ claim in Sixtus v Ardern [2022] NZHC 1161, Cooke J recorded the claim as including complaints about “The Marsden Point Refinery … The Government’s Three Waters Proposal … Certain allegations made by Judith Collins … The establishment of two Mormon temples which was endangering the safety of the protestant religion … The disarming of protestants of their firearms [and] An allegation concerning Lexis Nexis.” No, it didn’t say what the LexisNexis thing was. I know. I’m disappointed too.

 

And, finally, if this was meant to cover serious legal developments at all, I’d be directing you to:

P v District Court at Manukau [2022] NZHC 1102 where a complainant in a criminal case successfully applied for judicial review of a court’s decision to stay a criminal prosecution. 

Jones v Minister of Justice [2022] NZHC 1177 where a prospective defendant successfully applied for judicial review of the Minister’s decision to extradition decision based on a failure to consider whether Mr Jones might be tried in New Zealand, with the overseas complainant giving evidence by AVL. 

 

Bonus son-of-a-judge quiz

Below is a quiz I wrote a while back when “son of a judge” was big news. I didn’t publish it at the time because it felt too much like having a go. But I like the questions, and so now that sufficient time has passed, you could have a go if you like.

1. Which son of a judge had the title of his father’s book addressed to him?

2. Which son of a judge was Solicitor-General?

3. Which son of a judge was a Governor-General?

4. Which son of a judge was a President of the Law Commission?

5. Which son of a judge is a judge whose father was a modern Supreme Court judge?

6. Which son of a judge was a judge whose father was an old Supreme Court judge?

7. Which son of a judge was the first New Zealand-born old Supreme Court judge?

8. Which son of a judge is a judge whose father was Chief Justice of New Zealand?

9. Which son of judge was a judge whose father was Chief Justice of New Zealand?

10. Which son of a judge is a judge whose father was also the son of a judge?

Answers only if I can manage to write another one of these next month.

 

By now you will be aware of Mallon J’s decision which offers:

• An unusual approach to evidential requirements and thresholds in s 5 NZBORA demonstrable justification analysis.
• Typically clear-minded and piercing analysis that draws unsurprising conclusions from orthodox law.

The important things to focus on are the:

• Parts where the Court found the MIQ system was lawful and a demonstrably justified limitation on rights.
• Parts where the Court found the MIQ system was not a demonstrably justified limitation on rights.

Yes, it is true that there are also:

• Parts where the Court found the MIQ system was not a demonstrably justified limitation on rights.
• Parts where the Court found the MIQ system was lawful and a demonstrably justified limitation on rights.

But that has to be seen in light of the fact that the measures:

• Were necessary to sustain a zero-Covid approach that materially contributed to the health and wellbeing of New Zealanders, and that almost all of them have been upheld as lawful and proportionate.
• Operated to cause anguish for New Zealand citizens and residents wishing to exercise rights guaranteed by law, and the Court took care to centre the human stories of those adversely affected.

Even though the judgment is:

• Quite long.
• Not short.

That is no excuse for people who:

• Are badly misinterpreting this decision as a panning of the entire MIQ scheme by the Court.
• Seek to obscure the fact that a central aspect of MIQ has been found to be an unjustified limitation on rights.

But no matter what sincerely held views you have about this, it is clear that the judgment is:

• Vindication of what I have been saying about MIQ all along.
• Vindication of what I have been saying about MIQ all along.

It now behoves us all to pull together as a commentariat to:

• Keep pretending we have actually read the judgment.
• Keep pretending we have actually read the judgment.

In a joint statement the Chief Justice and the Chief District Court Judge today outlined a new approach to reducing the large number of outstanding trials created as a result of COVID-19. It comes as courts attempt to reduce high case numbers, with jury trials currently being scheduled in mid-late 2023 in some centres. The full statement is below:

“Jury trials are now proceeding in courts across the country where it is safe to do so. Judges are working closely with the Ministry of Justice to ensure all court participants are kept safe, including through the provision of KN95 masks, greater distancing in courtrooms, daily rapid antigen testing, and increased ventilation of courtrooms where the court estate permits.”

“Nevertheless, the court system is continuing to feel the effects of periods of lockdown and alert level red settings where many hearings were not able to go ahead. The result is that there are still a large number of cases – particularly jury trials – that need to be heard. This is exacerbated by new cases continuing to enter the system at the same rate as usual.”

“Other jurisdictions have altered their judicial approaches in light of the resource implications of COVID-19. For example, the Victorian Court of Appeal stated in Worboyes v R [2021] VSCA 169 at [39]:

38 Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present. One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.

39 For these reasons, we consider that — all other things being equal —a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.

“This is a salutary example of how, even in exceptional times, ordinary sentencing principles can be applied to new situations to guide principled responses for the benefit of all. We have been influenced by this thinking, but have chosen a different sentencing principle to underpin our response: premeditation.”

“It has been a strength of the New Zealand judicial system’s response to the COVID-19 pandemic that it has involved goodwill and effort from a wide range of participants: lawyers, judges, and the Ministry of Justice. However, to date we have neglected to ask those entering the system to play their part as well.”

“Therefore, we are asking today for all persons considering committing a crime to defer doing so until at least 2024. That will ensure that when their case enters the court system it can be dealt with promptly, and will allow us to use the intervening time period to deal with the cases already in the system.”

“While we recognise that certain crimes are spontaneous in nature and will likely not able to be deferred, there is no reason why, for example, most species of fraud could not be put off for a reasonable period of time. It is never appropriate to drink and drive but it’s really really not appropriate over the next year and a bit. We are also asking people currently engaged in any type of conspiracy to check in with your fellow members and come up with a timetable for your offending that respects current court workloads. We consider that, in the circumstances, these are reasonable sacrifices for persons to make, and will bring significant systemic benefits in allowing us to use existing judicial resource to focus on cases already in the system.”

“Should people not heed this request and choose to commit offences in the next 21 months it will be considered as evidence of premeditation in the offending, and treated as an aggravating factor under s 9(1)(i) of the Sentencing Act 2002. We want to reassure New Zealanders that, given this factor applies only at sentencing, there is no risk of this applying to those acquitted of offences. Further, it requires no legislative change and simply represents an extension of well-understood sentencing principles to the challenging situation that COVID-19 presents.”

“This approach will take immediate effect and will operate until around August when the Court of Appeal will probably overrule it.”

Sovereign citizens think that a name written in CAPITAL LETTERS denotes a different and special meaning. Lawyers know that it is really italics that do that.

Sovereign citizens write strange phrases on the top of their legal documents seeking to unilaterally impose certain legal obligations on another party. Lawyers may write without prejudice, or in confidence, or send statutory demands, but they certainly don’t indulge in that strange carry-on.

Sovereign citizens say an old edition of Black’s Law Dictionary as an authoritative source of law. Lawyers know that the law isn’t what a some editors of an early 20th century dictionary say it is; it’s what a bunch of judges in 18th century England says it is.

Sovereign citizens insist that their identity in one capacity is separate to that in another capacity and that protects them from liability. Lawyers cite Re GJ Mannix and sue people in their role as trustee.

Sovereign citizens get their arguments laughed out of court. Lawyers get their arguments laughed out of court but charge $400 per hour for the privilege.

Sovereign citizens think that there are magic words you can say that mean the state cannot control you. Lawyers know that it’s no exaggeration to say that an applicant for habeas corpus pretty much only needs to say those words and if the state can’t prove the legality of their detention then a Court will order the release of the applicant on the spot, and if that isn’t the equivalent of magic words then I’m not sure what is.

Sovereign citizens make strange claims about admiralty law. Lawyers also make strange claims about admiralty law because pretty much no one has read Part 25 of the High Court Rules 2016.

Sovereign citizens assert that the judiciary is a shadowy undemocratic cabal of well-connected people. Lawyers know the judiciary is a bunch of people often from the same handful of families appointed in the absolute discretion of the Attorney-General.

Sovereign citizens allege the state creates legal fictions around births and birth certificates. Lawyers know that the state doesn’t do that. Except with the entire concept of adoption.

Sovereign citizens think that they can upend an entire existing legal order simply by asserting saying that sovereignty exists. Lawyers know that only William Hobson could do that.

Sovereign citizens’ approach to law involves picking and choosing some statutes to apply while seemingly ignoring others, as if there is a way to ignore some primary legislation. Lawyers only do that if they’re applying Fitzgerald v R.