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.”

Answers to the quiz, or: fact-check this, you nerds

The quiz for the recently-returned-to-work is here.

Here are what I think are the answers.  Most of the questions I pulled from useless trivia knowledge taking up valuable space in my head, but I am prepared to be proved wrong.  I am bracing myself to be Edgelered/Geddised unstintingly: feel free to either comment or to tweet me @strictlyobiter

Which famous New Zealand case:

 

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

  • Died at sea? Sir Charles Skerrett
  • Was Premier of New Zealand? Sir Robert Stout
  • Shared a name with a famous Saturday Night Live alum? Sir Michael Myers
  • Was the last Chief Justice to serve in World War 2? Sir Ronald Davison
  • Had a Masters from Stanford? Dame Sian Elias

 

Explain under what circumstances a High Court Judge could give a minority decision, with the majority decision being given by people without law degrees. I think they could either under the Human Rights Act or the Commerce Act, when additional members of the Court are appointed: see s 126 of the Human Rights Act 1993 and s 77 of the Commerce Act 1986.

UPDATE: Andrew Geddis has pointed out why I am almost certainly incorrect on this.  You can read the tweet discussion starting with this tweet.

 

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

  • Were formerly Associate Judges? Four: Venning, Lang, Gendall and Osborne JJ
  • Were formerly District Court Judges? Two: Thomas and Powell JJ
  • Were formerly Law Commissioners? Two: Elias CJ and Brewer J

 

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? More Russell McVeagh partners (Kos P and Peters, Whata, Katz, Fitzgerald JJ) than former Crown solicitors (Lang, Brewer, Moore, and Gordon (acting warrant) JJ).

 

Solve these cryptic crossword clues:

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

 

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 Second – 216 sections
  • Crimes Act 1961 Third – 415 sections
  • Interpretation Act 1999 First – 38 sections

 

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.

Check your answers against this list.

 

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

1983

 

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?

Finn, Todd and (Matthew) Barber

 

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?

James Crosby Martin was a Supreme Court Judge for one day (officially) from 1 January 1901 to 2 January 1901. You have to discount his time as an acting judge in 1900, and then accept his retroactive resignation, deemed to be accepted on 2 January 1901.  And the terms of the question discount his earlier tenure as a judge of the Arbitration Court.

 

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).

All I got was Eight Mile Style v New Zealand National Party, and Bryson v Three Foot Six Ltd.

 

What bench in New Zealand wears blue robes?

The coronial bench.

 

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?

Wikipedia will explain this to you.

 

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

Dunedin and Nelson.

 

What word or words link?

  • A current High Court judge and a seminal case on “regall authority”. Fitzgerald
  • A present-day dean of a New Zealand law school and a former Prime Minister. Palmer
  • The leading case on sentencing discounts for guilty pleas and a famous mountain. Everest (Mr Hessell’s middle name was Everest.)
  • A 2016 film set in the DC Universe and a group of Legislative Council members appointed in 1950. Suicide Squad
  • The first President of the permanent Court of Appeal and the office of the Crown Solicitor at Timaru. Gresson (Sir Kenneth Gresson, and the law firm Gresson Dorman)

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!

Chief Justice spends summer break barricading herself in chambers

barricade
Artist’s impression of Elias CJ’s latest dissent

Supreme Court staff returning to work this week found the Chief Justice’s chambers now an impenetrable fortress.  Sources understand that Dame Sian spent most of her summer break barricading herself in her chambers, the latest in a series of moves to prevent mandatory retirement this March.

The barricade appears to be constructed mainly of Law Reports, spare furniture stolen from other justices’ chambers, and wooden panelling ripped from the wall of the main courtroom.  It is not known whether the Chief Justice has taken hostages.

Police are now on the scene and it is understood they have already had to trespass from the premises an overly-excited Ted Thomas.

Receipts scattered on the ground outside the barricade indicate purchases of large amounts of bottled water from Thorndon New World and freeze-dried meals from the Kathmandu on Willis Street.  Experts estimate that the supplies could last at least until the end of 2019.

Speaking on condition of anonymity, a fellow Supreme Court justice conceded that he should have seen the move coming: “When Dame Sian oversaw the redesign of judicial robes last year she insisted that they be woven with kevlar, as well as heat reflective lining that defeats infra-red heat scanners.  With the benefit of hindsight that’s going to make it pretty difficult for the Armed Offenders Squad to get her out of there.”

Expert Police negotiators expressed pessimism at being able to talk around the Chief Justice.  “We’ve been reviewing her Honour’s judgment in Hamed v R and it’s plain we’re dealing with someone with extremist views.”

Granting an exclusive interview to Strictly Obiter and all passersby, the Chief Justice shouted from the window of her first floor chambers down to the street: “You can take this office from my warm and not-yet-dead 70 year old hands.  Let’s see you outvote me 4-1 this time, you bastards.”

Her Honour’s barricade follows the Chief Justice’s removal from pipes over the Terrace Tunnel in central Wellington after a 10 hour standoff.

New legal trends for 2019

Out: Elias CJ (dissenting)

In: Winkelmann CJ (for the Court)

 

Out: Russell McVeagh partnership.

In: The independent bar.

 

Out: Queen’s Counsel.

In: King’s Counsel.

 

Out: comcom.govt.nz

In: comcom.com

 

Out: Counsel in Concert

In: Legislative Instruments

 

Out: Palmer J on deterrent sentences for commercial drug offending.

In: Palmer J on the Criminal Proceeds (Recovery) Act 2009.

 

Out: Judicial appointment rumours.

In: Murmuring judges.

 

Out: Champagne flutes in law firm photos.

In: Gang signs in law firm photos.

 

Out: More Dotcom appeals.

In: More Dotcom appeals.

 

Out: E-Discovery.

In: Discovering E.

 

Out: AML suspicious transaction reporting.

In: AML auspicious transaction reporting.

 

Out: Ministry of Justice industrial action.

In: Ministry of Justice industrial inaction.

 

Out: New Zealand Law Society Gender Equality Charter.

In: Violent Feminist Revolution.

 

Out: Clean waterways.

In: Tainted jury pools.

 

Out: Memorial for Chambers J.

In: Tomb of the Unknown Jurist.

 

Out: Alternative dispute resolution.

In: Hipster dispute resolution.

 

Out: McKenzie Friends.

In: McKenzie Friends With Benefits.

Opera singer or lawyer?

I’ve always been amused by the moody lawyer profile shot, sometimes accompanied by  shadows playing across the face and a gaze fixed squarely on the middle distance.  They aren’t just lawyers, they are Cool Guys (NB people of all genders can be Cool Guys).  Below are ten photos.  Five are New Zealand lawyers, and five are opera singer profile photos.  Can you pick which is which based solely on the style of photography?

OperaLawyer10
Candidate 1

 

OperaLawyer3
Candidate 2
OperaLawyer6
Candidate 3
OperaLawyer8
Candidate 4
OperaLawyer5
Candidate 5
OperaLawyer9
Candidate 6
OperaLawyer4
Candidate 7
OperaLawyer7
Candidate 8
OperaLawyer1
Candidate 9
OperaLawyer2
Candidate 10

Answers below!

 

 

 

 

 

 

 

 

 

 

Baritones and sopranos: 2, 5, 7, 9, 10.

Barristers and solicitors: 1, 3, 4, 6, 8.