Strictly Obiter Alert Level 4 Quiz – Wednesday 25 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. Have you been following constitutional developments in Samoa? The (currently suspended) Samoan Attorney-General shares a name with a seminal case about injunctions. What is the name?

2. Appointed King’s Counsel in 1947, then appointed to the Legislative Council in 1950 as part of the Suicide Squad, this barrister with the first names Oswald Chettle is (perhaps) remembered today for chairing the Special Committee on Moral Delinquency in Children and Adolescents. The report of that committee became colloquially named after him. What was his surname?

3. Name a New Zealand Attorney-General that has not been a lawyer.

4. He combined arts and law, completing a BA in political science in 1893 at Canterbury College of the University of New Zealand. He shifted to Auckland, where he was articled to the solicitors Devore and Cooper, and completed his LLB in 1896. He was the first Māori person to complete a degree at a New Zealand university. Who was he?

6. Which Court has an incorrect (or, rather, incomplete) te reo Māori interpretation in its intituling?

7. What was the name of the boat in R v Dudley and Stephens?

8. What links Timothy Cleary, Ethel Benjamin, Jack Northey and Rex Mason?

9. Name as many judgments as you can that have a sitting or former Prime Minister as a party. I can get at least five modern PMs, I think.

10. The cartoon below was published in the New Zealand Observer on 6 September 1913. It depicts Edwards J peeking out of his blindfold of justice at a comely witness and was published with the caption  “Justice is not blind”. Was it a criminal contempt of court?

Justice is not blind

 

 

 

 

 

Answers

1: Savalenoa Mareva Betham Annandale. 2: Mazengarb – the Mazengarb Report. 3: Michael Cullen wasn’t a lawyer. Neither apparently was George Forbes. 4: He was Sir Āpirana Ngata, more recently of $50 note fame. Dammit I should have made the question name a lawyer on New Zealand money. Ah well. 5: It is at this stage that I realise I appear not to have asked a question 5… Oh dear. The wheels are coming off. Well, let’s think of one now. Who served as Attorney-General and, in that role, had the disparaging nickname Necessity (because Necessity knows no law). Answer: William Downie Stewart, according to Jack Marshall’s Memoirs volume 1. 6: The Supreme Court. The English says “In the Supreme Court of New Zealand” but the Māori wording on the intituling doesn’t have an “O Aotearoa” like the other courts have. 7: The Mignonette. 8: They all have modern-day prizes named after them. 9: So, Mainzeal has Jenny Shipley in it. Then there was those habeas challenges to alert level 4 in A v ArdernLange v Atkinson was David Lange. I think there was a Taylor v Key (or at least some Graham McCready-based litigation). And Fitzgerald v Muldoon. 10: It’s not criminal contempt. I have a half-written essay about this cartoon and the backstory, but you could read the decision of Attorney-General v Blomfield (1913) 33 NZLR 545 (SC).

 

Strictly Obiter Alert Level 4 Quiz – Tuesday 24 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. Name a country that currently appoints King’s Counsel.

2. What links buzz, quarter, top, and attraction?

3. Find something unusual about Terpstra v Police available here: http://www.nzlii.org/nz/cases/NZHC/1988/2263.pdf

4. Which current QC played a central role in the establishment and first decades of The Capital Letter?

5. Name an organisation with the acronym NZBA that appears higher up the list of Google results than the New Zealand Bar Association.

6. William, George, James, Robert. Who’s next?

7. There are two Justices France, and one Justice French. But which President of the Court of Appeal had Parris for a middle name?

8. Where does the Chief Justice rank in New Zealand’s order of precedence?

9. What song features the following?

(1) An electric guitar plays staccato (short, precisely articulated) chords.

(2) It plays at a moderate tempo of approximately 84 quarter notes (crotchets) to the minute.

(3) There is a steady duple metre.

(4) A four-measure (four-bar) harmonic template is established that runs unchangingly throughout the song. This template consists of two measures of D minor, followed by two measures of G minor (first inversion). The precise notes in the chords vary slightly, but the chords themselves do not – they are always D minor and G minor – and the note D appears in every chord, functioning as a sort of pedal point or drone, a constant bass to the music.

(5) At the end of each round of four measures, there is a thirty-second note (demisemiquaver) chord of A7 (in fact D/E/G, the A is not sounded), a flick of an upbeat propelling the music back to the tonic D minor.

10. Why does a flame pay for its own ticket to a popular play?

Answers:

1: Tonga does – other answers accepted. 2: These are all synonyms for types of court: High, District, Supreme, Appeal. 3: A decision from the erstwhile Tokoroa Registry of the High Court – appearing once and never again? 4: Jack Hodder QC. 5: The New Zealand Bankers Association and the New Zealand Breastfeeding Alliance. 6: Charles: Charles Skerrett, the fifth Chief Justice of New Zealand. As long as you can remember MAPSS MOB WDEE (pronounced maps mob wuh-deeee!) you can remember the CJs. But then you have to know their first names too, I guess. 7: Clifford Parris Richmond – photo below from this source: https://natlib.govt.nz/records/22425569 8: Fifth, behind the Sovereign, the Governor-General, the Prime Minister and the Speaker. 9: Lose Yourself, as described by a witness and quoted by Cull J in Eight Mile Style LLC v New Zealand National Party [2017] NZHC 2603. 10: Because you can’t shout fire in a crowded theatre.

CA1

Strictly Obiter Alert Level 4 Quiz – Monday 23 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. In a song made popular by Willie Nelson and Waylon Jennings, mothers were advised that they should let their babies grow up to be “lawyers instead”.  What career were they advised against?

2. What was the longest running (in terms of hearing time) civil case in New Zealand? And what was the longest running criminal case?

3. Name a currently sitting New Zealand judge who was present at the Oxford Union when David Lange made his “I can smell the uranium” speech.

4. Name someone who served as Dean of a New Zealand Faculty of Law who then served as a Supreme/High Court Judge.

5. Who served as the New Zealand judge on the International Military Tribunal for the Far East, responsible for trying war crimes allegedly committed by Japanese forces during World War 2?

6. Which of these were ancient English legal concepts, and which have I made up? Chiefage, essoin, infangthief, advowson, monition.

7. Name Asimov’s Laws of Robotics. (Yes, the Zeroth Law as well.)

8. In his autobiography, “Not Entirely Legal” Leonard Leary QC relates his defence of Thomas Hayr in a1952 prosecution for murder. In retrospect, the defence advanced the first successful instance of a particular defence in the common law world, even though said defence did not exist in law at the time. Leary was forced to argue the defence under the M’Naghten Rules, and succeeded. But what would the defence come to be known as?

9. 6.02214076×1023 gives a clue to the location of certain courts. Name one.

10. What links Jan McCartney, Simon Moore, Sir Geoffrey Palmer and Jack Hodder?

 

Previous entries are:

Strictly Obiter Alert Level 4 Quiz – Friday 20 August 2021

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

 

 

 

Answers:

1: Mamas don’t let your babies grow up to be cowboys. 2: Equiticorp for civil. Pretty sure it’s R v Bublitz for criminal. 3: Kós P was, as related in this speech: https://www.courtsofnz.govt.nz/assets/speechpapers/2hjk2.pdf but an Arthur Tompkins figures in the story so perhaps two. 4: Callan J served as the Dean of the University of Otago Law Faculty. Hammond J served as Dean of Auckland and Waikato. Palmer J was Dean of Vic. There may be more – message me on Twitter if you thought of another. 5: Northcroft J. 6: All five are real. What a system! Most have Wikipedia pages if you’re curious. 7: Did you get them? https://en.wikipedia.org/wiki/Three_Laws_of_Robotics I love Asimov’s robots stories. 8: Sane automatism – the claim to being the first comes from Leary’s entry in the Dictionary of New Zealand Biography. The M’Naghten Rules required a disease of the mind, which wasn’t really Hayr’s situation but they succeeded anyway. 9: 6.02214076×1023 is one mole’s worth. So you can take your pick of courts on Molesworth St: the Wellington High Court or the Court of Appeal. 10: They were all appointed Senior Counsel and only later reverted to Queen’s Counsel. 

What a day! Sorry for the late answers. Time to go line up at my local Countdown – one of the few in Auckland not to have been a location of interest… yet.

Strictly Obiter Alert Level 4 Quiz – Friday 20 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

1. What links a Radio New Zealand Wallace, a Homer who is smiling politely, Kororareka, and the longest-serving current Associate Judge of the High Court?

2. Who is the author of this, the best signature in the New Zealand judiciary?

Screen Shot 2021-08-19 at 9.41.38 PM

3. Fountains of Wayne sang about an unusual specialisation in the law. The singer is “heading for the sun” and is “gonna become” what type of lawyer?

4. What is the “dustbin of laws”?

5. What chambers in New Zealand has the most Queen’s Counsel?

6. The name of the new model for the District Court – Te Ao Mārama – comes from the concept Te Pō Ki Te Ao Mārama. What is the English translation?

7. How many databases are there on NZLII today: 206, 216, 226?

8. Which President of the Supreme Court of the United Kingdom had a degree in chemistry?

9. Identify these cities by their High Court registry code: 404, 485, 409.

10. Why will the Supreme Court always grant leave to hear cases involving the Chief of the Defence Force?

Answers now below.

Previous rounds:

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

Answers. 1: Wallace Chapman, Homer Simpson, Kororareka aka Russell, Associate Judge Bell (all first names of large corporate law firms). 2: Powell J, the John Hancock of New Zealand legal documents. 3: California Sex Lawyer. 4: The law of tort, according to Winfield and Jolowicz. 5: Shortland Chambers, I’m pretty sure. You can’t move for silk in there. 6: The transition from night to the enlightened world. 7: 206. 8: Lord Neuberger. 9: I was nice to you – they’re the big ones: Auckland, Wellington and Christchurch. Meaner questions about registry codes will follow in the future. 10: Why, because the Supreme Court will always grant leave to matters of General importance, of course.

A break over the weekend for all of us, but back for more questions on Monday. Stay safe!

Strictly Obiter Alert Level 4 Quiz – Thursday 19 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

 

1. Apart from, perhaps, LawFuel’s Power Lawyer List, the Order of New Zealand is New Zealand’s highest honour.  It is limited to only 20 living members (the ordinary members).  Over the years, some judges have been “additional members of the Order of New Zealand”: Lord Cooke of Thorndon and Sir Owen Woodhouse.  But only two judges have been full ordinary members.  One is a current member (still with us), and one is a former member (sadly no longer).  Name one.

2. What Dickens novel features the case of Jarndyce v Jarndyce?

3. Which composer worked at his country’s Ministry of Justice before going on to compose the 1812 Overture?

4. Who said (or wrote), when discussing the idea of common law measures of damages under NZBORA, “the private law tail should not be permitted to wag the public law dog”?

5. What number is in the title of the current Covid order that is creating this alert level 4 lockdown? Is it 7, 8, or 9?

6. Assume no change is made to the judicial retirement age. Of all the judges who have served or are currently serving in our modern Supreme Court, who has (or will) serve the longest on the Supreme Court bench? Possibly a less clunky way to ask this question would have been to ask who was the youngest to be appointed to the Supreme Court bench, which I think gives you the same answer, but there you go.

7. Which two High Court registries have the shortest straight line distance between them?

8. What links Justice Grant Powell, Justice Christine Gordon, and Justice Stephen Kós?

9. Which New Zealand Attorney-General appointed themselves to the High (at-the-time-Supreme) Court bench?

10. What was the name of the prerogative writ sought in Parsons v Burk – a 1971 attempt to prevent the All Blacks travelling to South Africa?

Answers now below.

 

 

 

 

Answers: 1: Sir Kenneth Keith and Sir Thaddeus McCarthy, though neither are on the LawFuel Power List. 2: Bleak House (aka my place during Alert Level 4). 3: Tchaikovsky. 4: It sounds like it could be Kós P, but it was the judicial generation just before. A great Hammond J crack from Attorney-General v Udompun [2005] 3 NZLR 204, (2005) 7 HRNZ 811 (CA) at [206]. 5: It’s order number 9. 6: According to the dates on Wikipedia it’s Elias CJ. 7: Nelson and Blenheim. 8: They all use their middle names as their first names: Laurence Grant Powell, Judith Christine Gordon, John Stephen Kós. 9: Alexander Herdman, you can read about him here: https://teara.govt.nz/en/biographies/3h18/herdman-alexander-lawrence. 10: Ne exeat regno. Please enjoy this excerpt from Peter McKenzie “New Zealand’s First Chief Justice: The Rule of Law and the Treaty” (2012) 43 VUWLR 207 at 208 paying careful attention to footnote 5. Stay safe all.

Regno

Strictly Obiter Alert Level 4 Quiz – Wednesday 18 August 2021

For your lockdown distraction. Ten questions per day. Posted in the morning before work. Answers added to the end of the post around 3pm (work dependent).

 

1. Who was the first President of the permanent Court of Appeal?

2. Is the classic case for recall Horowhenua County v Nash (No 2), (No 3), or (No 4)?

3. How many High Court registries are there in New Zealand?

4. Who is this Chief Justice?

Judge1

5. Do citations of the Criminal Reports of New Zealand use square brackets or round brackets?

6. What business did New Zealander Geoffrey Lee carry on before he was killed in a plane crash in 1956?

7. What is “Selden’s gibe”?

8. What links the person who has the most appearances as counsel in the New Zealand appellate courts, the guideline judgment for sentencing aggravated robbery, and Thomson Reuters’ resource management law product?

9. What other place is the Chief Justice of New Zealand also the Chief Justice of? (If you are Dame Helen Winkelmann you are not allowed to answer this question.)

10. Professor Peter Sim was Dean of the Otago Law Faculty from 1968 to 1980. About him it has been written that “He thought it best to ignore requests for information from the University Registry, reasoning that a prompt response would merely encourage them to make further demands and that if it was really important ‘they would send someone over’.” What still-used textbook did Professor Sim co-author?

Answers now below.

 

 

 

 

 

Answers: 1: Kenneth Gresson. 2: (No 2). 3: 19, I think, but tweet me to tell me I’m wrong. 4: Sir George Arney. 5: Round brackets. 6: He flew a topdressing plane – he was Mr Lee of Lee’s Air Farming, the case about corporate legal identity. 7: It’s the whole equity varies according to the length of the Chancellor’s foot carry-on. 8: John Pike, R v Mako, Salmon’s Resource Management Act – fish link them all. 9: Tokelau. 10: Hinde, McMorland and Sim’s Land Law in New Zealand.

The CJ and the CBA

1580445602119

 

The Criminal Bar Association conference was held at the University of Auckland Business School this weekend. I got a free ticket, so I’m not allowed to tell you the coffee was so-so and there was no free wifi. But I can tell you that, caffeine, internet, and the compromise of my independence aside, it was a well-run, well-curated conference that was a good time for this public-lawyer-by-nature who dreams of the occasional crime.

The conference had genuine News: the Minister of Justice announced that legislation to repeal three strikes would be introduced within a month, subject to Parliamentary business. There was also a Detective Inspector from the National Organised Crime Group warning everyone about money laundering while standing in the Fisher and Paykel Appliances Auditorium. Occasionally Robert Lithgow QC did his best Robert Lithgow QC impression.

One and a half days of conference was attended by 370 attentive lawyers plus one Wellington-based criminal practitioner a few seats away from me who spent most of Saturday working his way through Jared Savage’s Gangland, a copy of Private Eye, and every puzzle in this week’s Listener. Whoever signed his CPD verification form, you’ve been had.

And then late on Saturday afternoon the Chief Justice blew the doors off the place.

She spoke for about 20 minutes – she was sharing the hour long slot with Kós P and Thomas J, three Heads being better than one. The other two were good. The President was permitted a short victory lap for the Court of Appeal’s junior policy, then told everyone to make more filenotes. The Chief High Court Judge lamented problems with disclosure which, in front of the CBA, is the equivalent of passing round the Werther’s Originals at the rest home.

And the Chief Justice. There were several topics, including the role of the Supreme Court. But it’s the bit about the role of the Chief Justice which I think ought to be heard more widely. I didn’t record her words accurately enough to quote back to you at length now. There was an official recording, which might be made public. But the impression still resounds, despite being delivered in the typical Dame Helen matter-of-factness (that I haven’t found a way to parody in writing yet): the rule of law is core business for a Chief Justice. And her choice of expression took practical form. These are my vain ascriptions of motive to her words, but they matter: the description wasn’t “The Chief Justice is the head of the judiciary in New Zealand”. It was “I need to see what is going on in these kinds of areas because it’s my job”. She gave an example: she needs to know about whether prisoners lose their cell assignments if they come to court, in case that perversely incentivises non-appearances or pleas. The implication was clear: the CJ needs to know, in order to decide how the courts might respond – whether that’s by considering increasing or decreasing AVL, advocating for changes with other branches of government, or holding all hearings in Swedish if that had a chance at making a difference. If it touches on the practical administration of courts’ work and the rule of law then it’s her job.

Jargon offered a decorative ribbon; she was taking a “whole of courts” or system perspective. But it’s like trying to wrap a hockey stick as a Christmas present. You know what you’re going to get (and it’s also something the CJ can hit you with).

Then the payoff. Legal aid, a topic that had already had airings at the conference. As Fiona Guy Kidd QC had said earlier that day, “The reality is the hourly rates for legal aid have not increased in the entire time I’ve been doing legal aid work, since 2011.”

The CJ didn’t hold back. And this part, I did get the quote for:

I think our legal aid system is broken. It’s hard to imagine how it can be more broken but I don’t really want to utter those words because then it will be. … It is unbelievably inadequate. … I am about to start saying it in a much more angry way.

And later, “It is a system that is going to collapse if we don’t do anything about it.” Without meaningful legal assistance for parties, we risk meaningful justice. And without meaningful legal aid, we jeopardise that legal assistance.

If that set off alarm bells at the Department for the Separation of Powers, you couldn’t hear them over the CBA’s applause.

Her Honour’s remarks, I think, went further – far further – than Dame Sian in Blameless Babes, a speech that at worst was a Gerry Brownlee-style “just asking questions” outing about penal policy, and one that came with an express acknowledgement of the separation of powers (see [16] of the speech: “In the last 10 years especially, there has been a change to greater prescription by Parliament. That is entirely legitimate. Parliament through legislation sets down the framework.”).

It was the judiciary commenting on government policy, as contained in legislation that Parliament has seen fit to enact. It was the judiciary commenting on the use of the public purse.

But far from being an overreach, it was entirely consistent with the role of the Chief Justice she had taken time to set out. It was never said out loud, but the defusing of criticism message I thought was quite compelling. The preemptive response to the criticism of “stick to your job” is clear: “this is my bloody job”.

Perhaps I’m still high on the thrill of hearing the constitution miss a gear change. But it was a moment that was genuinely electric. You will laugh at me for being too over the top but ever since Saturday afternoon I go back to  McGrath J’s expression of concern at the proposed removal of the reference to the “rule of law” in the Judicature Modernisation Bill in what became the Senior Courts Act 2016. I think those references matter precisely for moments like these.

It all seems a bit gushing, though, doesn’t it? To say an unusual speech is evidence of a Chief Justice on a mission? To claim to see strategy, to see cunning, even, if the whole thing were not so clear-eyed. To say I’ve seen rock and roll future and its name is Bruce Springsteen? Then put this aside as some injudicious hero worship. I rather suspect that if you asked the CJ she’d say she was just getting on with the job. Quite right. But if I were you I wouldn’t get in her way.

 

Where will the Supreme Court sit in Auckland?

The Supreme Court is coming to Auckland.  The leave decision in Taua v Tahi Enterprises Ltd [2021] NZSC 88 confirmed the Court will sit in Auckland in the week of 15 November 2021. At this stage it’s to hear the appeal in that case and also the appeal in Royal Forest and Bird Protection Society of New Zealand Incorporated v New Zealand Transport Agency (see leave decision [2021] NZSC 52 which doesn’t mention sitting in Auckland, but the Court website has it set down for the week 16-18 November 2021).

Some people will tell you that the Supreme Court has never sat in Auckland.  I think they would be right but also technically wrong, because the Supreme Court used to sit in Auckland all the time until 31 March 1980 (after which it was renamed the High Court: Judicature Amendment Act 1979, s 2).  [Inevitably someone will tell me that the modern Supreme Court has in fact sat in Auckland before, but I am happy to be confidently wrong about this…]

Now the tyranny of distance won’t keep the Court safe from Peter Watts QC telling it how badly it messed up Debut Homes.  

Perhaps sitting in Auckland is a practical thing.  Perhaps it’s a Supreme Court gap year away from the oversight of Parliament.  Probably it is part of the “justice on tour” approach that has seen the Court of Appeal play all the big centres in the past couple of years: Dunedin, Christchurch, Tuatapere, Kaeo.  Whatever the reason, from pure self-interest, how great will it be to be able to pop in and watch a Supreme Court hearing?  Maybe I’ll see you there!

If you haven’t already, you might like to read Justice Matthew Palmer’s speech in article form as “Impressions of Life and Law on the High Court Bench” (2018) 49 Victoria University of Wellington Law Review 297.  At pages 298-299 of the article he describes what he saw as some of the differences in Auckland and Wellington legal culture, and it’s one of the most interesting things I’ve read.  It’s stayed with me because as an Auckland emissary of a primarily Wellington-based organisation I really do think there are tangible and intangible differences in the legal culture between the two places (and no doubt other places as well).  Differences that I’ve never quite been able to describe beyond a laboured CSI and CSI: Miami analogy.  The article offers a really good take. 

Maybe that doesn’t make so much difference for the Supreme Court.  Since there’s only one, it draws all counsel.  The Court hears Auckland-centric cases, with Auckland based counsel all the time.  In the secret Koru Club for Supreme Court frequent fliers (the George Barton Lounge), the Jack Hodder QC you get in Auckland is going to be the same as the Jack Hodder QC you get in Wellington.  

But all of that is by the by.  The important question is where will the Court sit when it’s in Auckland?  Courtroom 1 at the High Court is the obvious choice, but that discloses insufficiently bold thinking.  Other options include:

 

Sky Tower

 

Sky Tower revolving restaurant

The highest court in the land where the wheels of justice turn slowly needs somewhere metaphorical to sit.

 


Waiheke

 

The Waiheke Ferry

Scenic. Free for several members of the court during off peak with their SuperGold Card.

 


Stratosfear

 

The Stratosfear at Rainbow’s End

Replace counsel’s internal screaming with external screaming.  

 


Danny Doolans

 

Danny Doolan’s

Not really where anyone would choose to be, impossible-to-follow conversation, and always about five minutes from a fight breaking out.  Just right for a Supreme Court hearing.  

 


Yacht

 

Stephen Mills QC’s yacht

Has the benefit of familiarity.  

 


Office

 

The old Court of Appeal hearing centre

Now disused, though months of neglect are likely to have actually improved sitting conditions there. 

 


Not pictured

My place

Two bedroom apartment, central city.  Can use the spare bedroom as a retiring room, then walk out into the open-plan lounge/dining/kitchen which will serve as the courtroom.  We have four dining chairs and the CJ can use the computer chair.

 

The best of the High Court – 1988 edition (or, yet more proof NZLII is excellent)

That petrol scent in your nose is the smell of the oily rag on which NZLII runs.  NZLII is sitting on box after box of unreported senior court decisions from the 1980s and 1990s.  This absolute treasure trove of information is otherwise packed away in unscanned, unsearchable boxes in law libraries.  For the most part, the cases aren’t on the subscription legal databases.  And, conversely, the uploading makes freely available the unreported versions of cases that hitherto have only been available in costly official reports.  It is a massive democratisation of the law from that era.

If someone who knew about law were to have skimmed all of 1988’s High Court decisions they could tell you about the learned and scholastic decisions from that year.  But I don’t know anything about law, so the results of my skim can only tell you about the interesting and absurd cases instead.

I can tell you about Hobbs v Police HC Christchurch AP231/87, 11 February 1988 where a Ms Hobbs owned a dog who attacked someone.  A policeman attended her house to interview her about her claim that the attack was out of character, only to himself be “attacked by the dog … after the dog was released from its chain by the appellant whereupon the dog immediately attacked the constable’s leg”.

I can tell you about Cairns v Department of Statistics HC Hamilton AP155/87, 4 February 1988 where Mr Cairns filled out his census form in runic Latin, not English, and was convicted of the offence of not producing a completed census form.  On appeal, Doogue J dismissed the appeal on the basis that Mr Cairns hadn’t “produced” the form by posting it in.  But his Honour noted that “it has to be said that if the legislation had intended that all responses to the surveys conducted by the Department under the Statistics Act were to be in English, then one would have expected the legislature to say so. The statute is silent as to the language of completion.”

And I can tell you about Lopesi v Auckland City Council HC Auckland AP191/87, 15 January 1988 where it was held that a totally illegible signature still met the requirement for a signed certificate under alcohol breath-testing laws.

Of course, being 1988 there was some dated language that simply wouldn’t be used by judges today.  No modern judge take the same approach as Holland J when his Honour said “That is a matter on which I cannot venture an opinion without being better informed” (Church v Hercus HC Christchurch CP26/86, 15 February 1988).

But 1988 was a good year for legal nonsense.  Like the charge of speeding through Kaeo defended on the basis that it was a “one horse town of the North” and speeding through it was not likely to endanger anyone (Carter v Ministry of Transport HC Whangarei AP35/88, 12 September 1988).  As Chilwell J noted, Kaeo may be a one horse town but “the appellant’s vehicle was a 156 brake horse car”.  In a similar vein 1988 also saw a young Tipping J, a long way from the Supreme Court, issuing an injunction about advertisements for bookcases (Freedom Furniture Ltd v Lifestyle Furniture Ltd HC Christchurch CP514/87, 22 Februrary 1988).

There is also the late 1980s typography, which goes wrong at times and makes full stops look like exclamation marks, leading to breathless judgments, like this from Gilmore v Police HC Palmerston North AP35/88, 19 February 1988:

Gilmore

And then there are the plainly kick-ass parties:

Flamethrower

An interim injunction of a cottage-industry Buzzy Bee knock-off contains shades of Denning and shades of Cull J trying to describe Lose Yourself.  Anderson J commenced his judgment in Tot Toys Ltd v Mitchell HC Tauranga CP186/88, 22 November 1988 with the following:

Some four decades ago a New Zealand company, H.E. Ramsay & Co. Ltd., devised a wooden children’s toy which has come to be known over the years as Buzzy Bee. This toy has a wooden head and wooden body, or rather abdomen for it lacks a thorax, and is in other respects more whimsically than anatomically designed. The affidavits indicate and it is really a matter of common knowledge, I would think, amongst New Zealanders that the design of this toy and its colour has remained constant since its creation. It has a yellow head with black markings, a red abdomen decorated with three transverse bi-coloured stripes of black and yellow. The antennae are represented by light flexible springs terminating in a red wooden knob. In lieu of six legs it has two blue wooden wheels in the front and a small trailing wheel at the rear. The wheels are joined by a single axle which has located at its centre a pinion, the purpose of which is to actuate a metal strip against a sounding cavity so that when the toy is pulled along it creates a representational buzzing sound. The wings which are traditionally yellow are made of wood dowel culminating in flat round simulated wings. Just as the traction of the toy actuates the sound so also by dint of friction does it cause the wings to revolve.

The affidavits indicate that some 400 thousand of these toys have been sold over the decades and that they have become a favorite from generation to generation, being purchased quite often it would seem by fond parents or doting grandparents influenced by warmly nostalgic memories of their youth.

And, beyond the absurd, the frankly fascinating.  Consider Re Tupuna Maori HC Wellington P580/88, 19 May 1988 an application for the grant of letters of administration “in respect of the deceased whose head is now in the possession of Bonhams Auctioneers of London for auction on 20 May 1988”.  The purpose of the application was “for the limited purpose of according to the deceased a proper burial according to Maori law and custom and to prevent as far as possible further indignity being visited upon him”.  Letters of administration would assist in bringing proceedings for the return of the head.  How brilliant is that?!  And the Court granted it, describing it as “plainly quite extraordinary and, I think, totally unprecedented”.  The deceased was estimated to have died in approximately 1820, which might be the longest span of time between a death and grant of letters of administration.  (You can read about the conclusion to this story here.)

There’s the perfect turn of phrase: “She has stretched the mercy of the Court to its fullest extent” (Charles v Police HC Wellington AP39/88, 30 March 1988).  And opening lines both sunny: “The subject of this proceeding is a crop of potatoes” (Christenson Potato Company Ltd v Registered Securities Ltd HC Hamilton CP63/87, 27 May 1988), and ominous: “The time has come when this unfortunate mess should be cleared up.  The case does not reflect great credit on anyone who has handled it” (Hyde v Direen HC Dunedin AP100/87, 20 May 1988).

The uploading of the 1988 decisions is a triumph, frankly.  You will use these cases.  And they’ve been uploaded at zero cost to you because of the goodwill of NZLII.  Consider donating what you can to NZLII, and support efforts to secure funding for NZLII wherever you can.  Whether you like the rule of law, or whether you just like a good zinger in a judgment, NZLII is indispensable.

An account of the 10 minutes before the interim orders hearing on the “free speech” Council venue cases

At last!  A case (a) involving interesting issues; (b) broadly within my (very small) legal wheelhouse; (c) not involving a client; and (d) in the Auckland, not the Wellington, High Court.  Perhaps I could contribute an account of the hearing.  That is, after all, how this account started.

And so I dutifully ducked out of work and bounced up Constitution Hill (that’s literally its English name) to the High Court.  2.00pm for a 2.15pm tee-off time.  In my step, some pep.  And in my hand, a polite letter to the presiding judge seeking permission to take notes in the public gallery.  The letter said I was a lawyer attending the hearing in my private capacity.  I wrote that “the purpose of the notes is to assist my personal recollection of matters discussed in open court, with a view to later writing something about the hearing”.  I didn’t mention the blog specifically because frankly that seemed a bit vain.  “Surely you must have heard of me, your Honour?”  Blurgh.  No thanks.

I got a nice message back from the judge, handwritten on my letter, declining the request.  It read:

Accredited media are entitled to observe and record what happens in court proceedings.  There are limits on even the parties being able to take notes during the hearing. 

You are free to observe the hearing but, given the private nature of your interest, permission has to be declined.

I appreciated the consideration.  But without the ability to take notes there was no way to ensure I could quote accurately what were liable to be somewhat involved legal submissions.

So the post has to end here, unfortunately.  I think the requirement to have to ask permission is a good requirement.  I’m also not interested in having a good old moan about the correctness or otherwise of the particular decision.  I have lots of thoughts but I don’t think that a blog post is the right place to do that and mightn’t be fair to the judge, whose decision I respect. 

Without the ability to take notes, I wouldn’t be able to write what I wanted, so I opted not to stay.  As always, there was a stack of work back at the office that needed to be done.  And so a bounce down Constitution Hill.  Letter in hand but no pep in step.  

I encourage you to read this from Bridgette Toy-Cronin about the rule of taking notes in Court.