Template statement for law firms on innovation and legal tech

Version One

Strictly Obiter and Associates are excited to announce a new collaborative development with literally every legal technology start-up in the world.  This will position Strictly Obiter as a dynamic and future-focused incubator of agile and engaging workflow systems.

We are motivated to centre ourselves as a change-agent for innovation; seeking synergies as we strive to be a catalyst for groundbreaking, cloud-based paradigms that will produce operational efficiencies for our clients.

In addition, internal processes will see us partnering with clients to augment an experiential and design-driven, user-centred approach to our work.  We will streamline,  and be an agile new player in sectors such as fintech.

Machine-learning will position us as a market leader through a transformational approach to understanding our metrics.  We are pivot-ready.  This is an audaciously non-linear approach and the sense of intentionality that we bring to this disruption of our legacy systems is second to none.

We will cast off the chains of pen and paper and bind ourselves with blockchain.  Our peer-to-peer systems are peerless.  Blue-sky thinking has led us to the Cloud.  We are replacing our sense of discovery with a sense of e-discovery.  Every man must have a code, and ours is Code.  We are making a hard drive towards the future.

Aggregated experiential platforms will transform our networks.  Non-static will be our watchword as we seek efficiencies in an iterative way to overcome our clients’ lived problems.  Smart analytics and algorithms will see us metamorphose into an agile firm, supplemented by automated cybersecurity protocols.

The future is now, and Strictly Obiter and Associates is proud to lead the way.

 

Version Two

We started using Dropbox for our client documents.

Editorial: the Tax Working Group’s proposed changes are unworkable, by the Chief Parliamentary Counsel

danger

It’s the day we all feared.  The Tax Working Group has released its proposed changes.  Well good for them.  None of it’s going to happen.

The Income Tax Act 2007 is virtually unreadable as it is.  We’re talking sub-sub paragraphs, and capital-lettered amendment sections.  And they want to what?  Add more?  Do you know how long the Income Tax Act 2007 currently is?  It’s over 3500 pages!  That’s just the Act!  That’s not any of the accompanying regulations or associated Acts.  It’s got a section number in it called “CW55BB” – that’s just the section number, without any subsections!

Right now the Income Tax Act 2007 is like a Jenga Tower where there aren’t any safe moves left.  There are entire Parts of that Act that we haven’t touched in years.  It’s too unsafe to send Parliamentary Counsel into them.  Tinkering with the wrong section risks collapsing the full weight of some Parts down onto those poor souls.  For the last five years we’ve just been banging a whole lot of new operative provisions into a schedule.  We’ve been hoping no one noticed and, frankly, it seemed like we were getting away with it.  Denzil Ward would be rolling in his grave.

Well, that won’t work any more; the Tax Working Group wants significant changes.  It’s not just extending the bright line test.  Given enough time and sufficient safety equipment we might – might – be able to manage changing references to a time period.  But expanding subject matter coverage when who knows where that subject matter features elsewhere in an Act that takes seven reams of paper to print?  You’re dreaming, mate.

Don’t get me wrong – we’re not afraid of doing our job.  And we’re good at it.  Being a Parliamentary Counsel isn’t all just doing a quick find-and-replace when a new government decides they don’t like the name “Vulnerable Children Act”.  I mean, you should see some of the 19th century legislation we have to keep on life support.  But the prospect of implementing any of these changes is worse than that time we had to write an Act declaring a living person was dead.

Right, time to see how I can make this the Legislation Design and Advisory Committee’s problem.

Editorial: The majesty of the Court of Appeal hearing centre, by the designer of the Court of Appeal hearing centre

As the designer of the Court of Appeal and High Court hearing centre in Auckland, I think I know a thing or two about what makes courtrooms truly special.   Without getting too E.P. Thompson about it, the majesty of the law is sustained by the formality of our courtrooms.  It’s therefore my pleasure and, I think, my duty, to share with you what makes the hearing centre such a fine site for the administration of justice.

First impressions count.  We don’t want people to think they’re in some intimidating process.  That’s why to get to the hearing centre you enter a non-descript Queen Street office building past a Unichem Pharmacy and a St Pierre’s Sushi.  We’re going for a Westfield justice vibe.  On Level Two is a LabTests collection centre.  As you ride the elevator up to the correct floor, look at the person next to you.  For all you know they’re there to drop off a stool sample.  That feeling you feel inside?  That’s the anticipation of justice.

Once you make it to Level 11 you’ve found us, as long as you turn in the right direction.  If you go the other way you’re at the ominous sounding “Learning Centre” for the Ministry of Business, Innovation, Employment and Re-Education Camps.

Now, this is where the impressive parts really start.  The lobby immediately invokes hushed tones, principally because there are large signs telling you to speak quietly.  We haven’t soundproofed the place and we don’t want the noise to carry into the courtrooms.  There is a tiny reception desk if you have some questions, and two client interview rooms that used to house circuit breakers and junction boxes.  Without exception every other door is marked with a sign saying “Private”.

Did you know this is where the Employment Court used to sit?  Don’t give too much consideration to the idea that this place wasn’t good enough for the Employment Court.  No, seriously, the Employment Court.

Of course the courtrooms themselves are, I think, very tidy.  No expense has been spared.  By which I mean we made sure to kill every possible expense.  A lot of people ask me, where is the bar in this courtroom?  But what is a bar really?  I think a lot of lawyers would tell you it’s nothing but an installation quote for $2500 plus GST that my manager didn’t approve.

But instead of focusing on what’s missing, focus on what we did do.  We banged up some wood panelling on a few of the walls, and we got a great deal on old sun-bleached curtains from a church hall in Dunsandel to throw up behind the judges.  There’s a crest of course.  A little big some might say; possibly a little big.  The overspend on the crest meant we couldn’t replace the blinds but they remain as a tasteful evocation of the commercial office-origins of the space.

The judges peer out from behind their double screens.  They’re on a raised dais of course, but not too raised.  We’re in an office building, so the ceilings are standard height.  If the judges get much higher they’re going to be hitting the ceiling tiles.  We get them to change some lightbulbs while they’re up there.  And naturally all of this can be neatly observed from the three rows of public gallery seating with economy-class leg room.

At the end of the day it’s important to remember that justice must not only be done, it must be seen to be done.  And there is no denying you can see justice being done.  If that is your benchmark of success, then the hearing centre, as a place where your eyes can visibly observe a hearing, must surely be seen as a runaway success.  Just put from your minds the symbolism that even though the Court of Appeal hearing centre sits 11 floors up, the Auckland High Court courthouse on the hill still manages to rise above it.

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)