Friday, 18 December 2009

Weathertight Home Damages

The recent decision in White v Rodney District Council, 19 November 2009, Woodhouse J, High Court Auckland, CIV 2009-404-1880 has attracted some public attention because of the approach of the High Court on appeal to the damages awarded in the Weathertight Homes Tribunal. The essential issue in the High Court was mitigation and the correct legal approach to the duty to mitigate damage. In the Tribunal, damages had been reduced by 45%, although this was set aside in the High Court and the full award restored. In addition, the general damages were increased from $10,000 for each Plaintiff to $25,000 for each.

The claim before the Tribunal was a reasonably familiar set of circumstances. The house had been built starting from June 1993, with a Code Compliance Certificate obtained in November 2001, which appears to have coincided with a sale to Mr & Mrs White in January 2002. Mr & Mrs White obtained a report on the house which contained a number of recommendations as to remedial work. The Whites obtained quotes from builders and endeavoured to get their chosen builder to do the work. He proved elusive, apparently because he was such a good builder that he was very busy. In the meantime, the Whites wrote to the Vendors and sought payment of the remedial work which had been quoted. The Vendors were strongly opposed to any contribution as was the Rodney District Council, the local council..

In the meantime, the Whites attempted to get alternative builders to do the work, which apparently they anticipated being able to pay with savings.

Regrettably, both Mr & Mrs White were made redundant, and without jobs, used all of their money they had set aside for the remedial work. By the end of November 2003, they filed an application with the Weathertight Homes Resolution Service. In the usual way, an assessor from the service inspected the property and provided a report in February 2004. This report then identified a substantial number of new issues and it became apparent that the damage would require far more extensive work than earlier suggested in the report obtained in 2002. The claim appears to have followed a leisurely path through the Tribunal and it was not until 2007 that the Whites discovered that the claim for the work now had ballooned out to $401,000. The amount which was eventually awarded was $281,250, largely because of difference between experts as to the scope of the work required. That sum was reduced by 45% because the adjudicator considered that the Whites should have got on with the repairs in 2002 – 2003 rather than wait until the time of the hearing.

Woodhouse J considered that the Tribunal was in error in application of the law as to mitigation. He stated the principle from the case of British Westinghouse v Underground Electric Railways [1912] AC 673 that the onus was on the defendant to establish what reasonable steps could and should have been taken by the plaintiff, and that those steps were not taken. This includes a requirement that the defendant must demonstrate other damage would have been reduced if the reasonable steps to mitigate had been taken. Importantly, that duty of taking all reasonable steps has to take into account all of the circumstances of the case, and does not require the application of hindsight. The Judge considered that it was important to note that the standard of reasonableness and of the steps taken to mitigate, were not high tests. This is of considerable importance to parties before the Tribunal, because in many cases they will not necessarily have the funds or the ability to raise funds to undertake the work at the time when best building practice may require the remedial work to be undertaken. Effectively, you have to consider the position of the plaintiff/applicant as it exists in the real world, or using the Latin phase “the wrong doer must take his victim talem qualem” or as he finds him. The other factors considered relevant to application of those principals were the steadfast refusal by the vendors to accept liability, and this combined with Mr & Mrs Whites’ employment problems meant they were in a difficult position.

Woodhouse J considered that the adjudicator was in error on a question of law in relation to the way in which the duty to mitigate applied to the decision. He considered that the adjudicator had set the standard too high and on the facts in this case, the other parties to the adjudication did not meet the onus required by the legal principle, to prove that Mr & Mrs White failed to act reasonably. The combination of denial of liability and redundancy meant that they were not in a position to meet the costs and had to rely upon the process before the WHRS to work the course. There is an implied criticism by Woodhouse J as to the time that the matter took from November 2003, the date of filing of the claim, up to the Hearing in March 2009. The Court did not alter the other findings other than removing the reduction for failure to mitigate. However, Woodhouse J then went on to increase the award for general damages based on a review of the awards made in similar cases. Effectively, he considered that the standard award should be around $25,000 each having regard to other recent decisions.

The decision will be of some comfort to claimants. Mitigation is commonly raised by other parties to claims before the Tribunal, and the considered and learned approach from Woodhouse J to the principles as to application of mitigation, make application of the test in the further cases somewhat easier. In addition, the increase in the general damages also sets a benchmark.

There was considerable criticism of the Tribunal in the general press. This is to some extent unfair to the Tribunal because it was only in two specific areas that the High Court was prepared to intervene. While those interventions are reasonably significant, there is no criticism of the analysis and the approach to calculation of the damages per se.

In addition to Weathertight Home claims, the case will have some significance in contractual claims where failure to mitigate is pleaded. The principles apply in contract and tort and again demonstrate that while, in many cases, leaky homes are a tragedy for the parties involved, they have certainly added to the body of jurisprudence in New Zealand.

Wednesday, 18 November 2009

A young lawyer to watch

Lawyers often get a bad press, and there is no shortage of lawyer jokes. I was reading the latest Law News and read about a young Maori woman lawyer Tamina Cunningham, who has recently been awarded the first Judge Karina Williams Prize in Law. Tamina has three undergraduate degrees, in arts education and law. She has won prizes at law school, but has also been heavily involved with support for fellow Maori students. She now works at Simpson Grierson and aspires to the bench. She is also the first in her family to obtain a university degree and become a lawyer. It is clear from her community work that she has not forgotten her roots, and she is someone to watch.

Friday, 30 October 2009

Supreme Court And Common Carriers

In a very recent decision Ports of Auckland Limited v Southpac Trucks Limited (SC 18/2009 [2009] NZSC 112), the Supreme Court has clarified the effect of the Carriage of Goods Act 1979. In a very lucid decision, the court overturned the Court of Appeal and restored a High Court judgment, which had itself overturned a District Court judgment. Justice Blanchard began with some praise for the drafters of this legislation and of the work of the Report of the Contracts and Commercial Law Reform Committee which recommended the new statute. He effectively considered that the research and drafting of the statute was a model of law reform, at least in part because of the use of persons with considerable insurance and commercial experience. I interpose to suggest that this may well be in contrast to much recent law reform which appears to derive from academic theory rather than experience at the coalface. The judgment itself is a model of clarity, and emphasises the purposive approach to interpretation of this statute. There is little recitation of previous case law, at least in part because Justice Blanchard refers to there being little need to approach the courts for interpretation due to the quality of the legislation drafting. The court went directly to the issues, without the need to conduct a detailed analysis, recognising that as the legislation had been designed to make the law of carriage of goods functional for the affected parties, then they should hold that what the carriers and insurers intended should be upheld. Incidentally I notice that the costs in the Supreme Court were 25% of the amount at stake. Some insurer was determined to break through the established meaning of the legislation, but in the end, came second.

Thursday, 22 October 2009

Supreme Court

I find it hard to believe that the Supreme Court has taken on a decision on a $63 medical fee. in Barr v New Zealand police SC 34/2009 on 21 October 2009 a ridiculous appeal from the District Court on whether Barr should have paid the doctors fee of $102.60 on his driving with excess blood alcohol conviction. Mr Barr considered that this was outside of the jurisdiction to order payment of medical expenses. He appealed on this ground to the High Court, who agreed, but then the matter went to the Court of Appeal, who held that the Costs in Criminal Cases Act did give jurisdiction. He then took this matter to the Supreme Court. In the meantime an amendment, which is not retrospective, was passed to regularise the position. While the courts cannot control the ability of parties to appeal, where they have such rights, I am astonished that the Supreme Court agreed to listen to this appeal. Even more surprising is that each party had two counsel in the Supreme Court. No doubt the parties say that it is an important point of principle. This must be rubbish because the conviction fine and disqualification of driving were not affected. It does not go to proof of the criminal charge, nor to the evidence. It does not even affect the admissibility of the evidence of blood alcohol content. Altogether, the appeal appears to have been a pointless exercise, no doubt detracting from time spent on more important appeals such as whether appellants should have received two years six months jail instead of three years two months. In the 1980s I recall Sir Owen Woodhouse commenting that the Court of Appeal was not there to tinker with sentences. In 2009 obviously the priorities have changed.

Monday, 19 October 2009

Construction Law Seminar

On Friday I attended the Society of Construction Law seminar on "Delays in Construction Contracts". The society has not previously run a full-day conference, but this was an outstanding success. The detail and work, and quality of the presenters and their papers thorough and very useful. The topic may sound arid, but delay means money. The methodology of calculating that claim is however a somewhat more complex than just making a money adjustment. The first speaker was from a very large construction company who gave a more general overview of the potential issues which arose from delay. Further speakers talked about the software used for programming, how certifiers should rule on claims for delay, the knotty issue of conditions precedent, the distinction between acceleration and expedition, owners rights for compensation with an emphasis on liquidated damages, and on entitlement to payment from a contractors view. Overall it was an interesting day and set a precedent which I hope the society will keep to.

Wednesday, 7 October 2009

Construction Contracts and Counting angels on Pinheads

Payment Schedules Again

It appears that knowledge of the requirements of the Construction Contracts Act is still not widely known, despite six years passing from the date it came into force. In addition, cases are being litigated in the District Court and High Court which could have been disposed of by a construction adjudicator much more rapidly and efficiently.

The recent Christchurch decision Foggo And Ors v R J Merrifield Limited 21 September 2009, Justice Christine French, HC Christchurch CIV-2009-409-000605, records the setting aside of a summary judgment obtained in the District Court, on the basis that the section 20 schedule was clearly inadequate, despite the more liberal approach encouraged by George Developments Limited v Canam Constructions Limited [2006] 1 NZLR 177. The history of the case was that the builder sent the owner a number of payment claims, with the usual time to respond. No schedule in the form in the Act was sent in reply, although a dispute was raised and a payment made on account. There were three principal errors in the payment claims provided by the builder to the owners. The first, which was an error in the heading, was that “payment of schedule” instead of “payment schedule” was used. This was considered not to be anything more than a typographical error. However the other two errors, proved fatal to the District Court judgment. The word "not" was erroneously included in the first line in two parts. These are worth quoting, and are as follows, emphasised:-

" If you do not respond to the payment claim by providing a payment schedule, but indicate in the…"

and the second:-

“If you do not respond to the payment claim by providing a payment schedule but do not pay the…”

The effect of this error was of course to make the payment claims confusing. While there was no evidence that the owner was confused, the court held that this was not important because of the effect of Welsh & Anor v Gunac South Auckland Ltd HC Auckland CIV-2006-404-007877, 11 February 2008, Allan J. In that case it was held that because the requirements of section 20 are mandatory, it is not necessary to then explore whether the errors did cause confusion. The errors alone were sufficient to make the payment claim bad. Justice Allan did consider in that case that some errors might not be fatal where the principal had not been misled or not in any doubt as to what was intended, giving as an example a failure to include the necessary statutory reference from the Act. This is in reality a restrictive view of the act, and with respect to the learned judge, not the sort of approach intended by the Court of Appeal in George Developments Limited v Canam Constructions Limited.

Although the building contract was for a residential dwelling house, it was clearly substantial because the total contract price appears to have exceeded $600,000. The payment claims referred to were numbers 12 to 15 and in common with most building disputes it was the payment for the end of the job which was left unpaid.

The owners did respond to the payment claim number 12 with an e-mail which the parties accept was sent on time if it was a schedule, but the builder challenged the form claiming it did not comply with the Act as a proper payment schedule. No proper response was made to the other three claims, but a payment of $70,000 was made on account, leaving about $100,000 owing. It was argued that the e-mail had to be read in the context of prior discussions, but regrettably there was little evidence as to what had been discussed. Justice French considered that the liberal approach in George Developments Limited v Canam Constructions Limited could only be adopted where there was evidence of prior written communications between the parties, so that the schedule could be read in the context of those discussions. In addition, she referred to the failure to indicate a final amount in the schedule, and following other decisions such as Westnorth Labour Hire Ltd v SB Properties Limited HC Auckland CIV-2006-404-001858, 19 December 2006, Rodney Hansen J, refused to accept the e-mail as an adequate schedule. Because the builder engaged in discussion about the email, the owners sought to raise an estoppel in relation to the subsequent rejection of the e-mail as a sufficient payment schedule, but this was also rejected by the judge.

The case illustrates a tension between the clear intention of the Court of Appeal in the George Developments Ltd v Canam Construction Ltd, that a relatively liberal approach should be taken to the documentation, and the particular approach taken by this judge. I rather doubt that the owners ever read the fine print in the payment claim. It would have been clear, or should have been clear, that they had a certain period of time to respond, and had a proper form to use if they wished to respond with a schedule. The errors in the payment claim did not inhibit them from responding by their email, and really answers the issue of whether they were confused. The addition of the words was clearly the same sort of typographical error as the name on the form. It may be that rejection of the email as the schedule was intended to be a consistent strict approach. With respect, her approach is too particular and narrow. If we are to have a practical construction litigation procedure, this sort of approach is unhelpful. But, anyone building a house of this value should be aware of the time periods in the Act and the required forms.

In the end, the summary judgement was set aside and the matter referred back to the District Court. The payment claims were dated in 2006. If the parties had engaged in a construction adjudication in 2006, they would have had a result in 2006 rather than being in the unsatisfactory position of a partial result in 2009.

Monday, 5 October 2009


The previous Labour government proposed setting up a sentencing council to advise the judges on guidelines for appropriate sentences. With the change in government last year, the sentencing council concept was scrapped. Reminding us again that the Court of Appeal is just across the road from Parliament, the full Court has taken it on themselves to become the sentencing council, which was probably their job in the first place. In the recent decision of R v Hessell CA170/2009 [2 October 2009], a full court has said that the Court of Appeal has resumed issuing guideline judgements and began with the effect of guilty pleas upon a sentence. The case itself is a rather sordid sexual escapade involving drink, speed and girls aged 14 and 15. The girl's mother and her partner initiated a drink fuelled sexual orgy with the girls. The mother and her partner were both charged, but the mother pleaded guilty early on in the piece. The partner only pleaded guilty in a few days before the trial was due to commence. He appealed a sentence of two years eight months imposed by Justice Heath, at least in part because the mother received a sentence of less than imprisonment, 12 months home detention. The disparity of the sentence was then attacked. The appeal was unsuccessful, not perhaps surprising considering the experience, and realistic approach from Justice Heath. However the Court of Appeal considered it was time to provide guidelines on the correct approach for discounts for pleading guilty. In doing so, the court has made a number of comments on judicial discretion in sentencing, effectively fettering the discretion of the District and High Court. This appears to have been a deliberate decision, because there is much discussion in the decision of the wide sentencing discretion formerly available to the judges. This can be summed up in a quote "The passage of the Sentencing Act 2002, with its insistence on a highly structured approach to sentencing, signalled the need to review unfettered discretions and effectively rendered the traditional approach to guilty pleas untenable. In particular, s 8(e) of that Act established as a fundamental principle of sentencing that like cases must be treated alike, so far as possible, and s 9(2)(b) identified a guilty plea as a discrete mitigating factor." Or in other words do as we say. It is a common feature of criticisms of sentences that the judge has got it wrong-too light/too heavy. If the judges are able to respond by saying Parliament has now prescribed this Act, and the Court of Appeal has told us the guidelines made under the Act, then they have an answer to the criticism, that they are just following what has been decided, or applying stare decisis.

The particular guidelines are the allowance for pleading guilty, and the appropriate discount for doing so. It seems that nodding to the charge at the first opportunity is of most benefit, but if you leave the admission to the day of the trial, then this may not have an effect on the sentence. I am reminded that back in the 19th Century, trials often took place only days after arrest. If you read contemporary accounts, the juries were assembled very quickly. It is only in the days of the strike out for delay between arrest and trial, that the discounts gain traction. Essentially the best discount is a third for the first opportunity. This falls to 20% at a status hearing or first call of an indictment, and down to 10% up to 3 weeks before trial. However remorse is not to be a separate factor. In what may be seen as a cynical analysis of the sincerity of remorse, the court distinguished this saying "we acknowledge that exceptional remorse, demonstrated in a practical and material way, can attract its own reward."

The point made is that administrative convenience is creeping into the way in which crime is disposed of. I have previously expressed concerns about over prosecution. Care will need to be taken in sentencing someone, who has delayed a guilty plea because of enthusiastic over prosecution, and if the correct charges were used, would have pleaded at the beginning. And I do wonder about remorse. It is often very important to the victim, that there is remorse. While it may be apparently easy to say you are sorry, anyone with experience of children will know the difference between genuine contrition and the curt teeth gritted version. A wise older lawyer taught me the need to express remorse at an early stage when dealing with professional disciplinary charges, and how this can deflate the heat of a complaint. I think it is much harder to say you are sorry then the Court of Appeal would accept.


Thursday, 1 October 2009

Blue Chip

The recent decision about the Blue Chip investment scheme comes as no real surprise. The sad feature is the naiveté of the investors, and the callous way in which so called financial advisors and lawyers failed in their duties to ensure that the Bartles (the investors) were properly advised of the risks of the transaction. The reality about the Blue Chip scheme, as with many others, is that if it looks too good to be true, then it is- and should be avoided. Many older people find themselves with a home and savings but only a small fixed income. They seek to maximise their investment, but often fall foul of the snake oil salesmen. There is some move to professionalise those who call themselves financial advisors, but of course Mr Mathias, the lawyer involved, should have known better, and is already a Law Society member. Just being qualified and in a professional body, is clearly not enough. People must become more financially aware, and there is less excuse than years ago when fewer were educated and did not have television/internet to provide easily obtainable information. The search for quality investments is difficult, and the stock market only works for the astute and lucky. Bank deposit rates are low, and finance companies have collapsed in bulk. Even investment companies like ING have had to freeze and settle up with investors. I don't know the answer myself. If I did I would be rich-and I always look at financial advisors to see if they are rich, and taking their own medicine. Perhaps the answer is to spend until you drop dead. It may be more fun that way.

Wednesday, 23 September 2009

Civil justice reform and the role of ADR

Last evening I went to the New Zealand Law Foundation public lecture presented by Dame Hazel Gunn at the Victoria University Law School.. Her topic was essentially the value of the many initiatives to reform civil procedure around the world. She discussed the value of those reforms and critically assessed the lack of any real empirical evidence as the basis for such reforms. She was concerned about the resources being diverted from civil courts to criminal courts, and the inevitable effect on access to the law. Importantly, she challenged the common theory that adjudication is not desirable and that mediation or other ADR methods are superior and should always be used. She identifies that a democratic society requires adjudication to enable people to have some certainty in contractual and commercial matters, and the growing expansion of ADR has led to a “thinning” of the common law. Her lecture will be published as part of the Hamlyn Lectures later this year. I hope both the Rules Committee and the Law Foundation buy a copy!

One of her concerns is the lack of any real empirical evidence that reforms are needed. One must keep an open mind about this-after all once the research has been completed and considered, there may well be a need for change. There was for example a concern in New Zealand that too much litigation was drifting without any impetus. As a result the case management system was introduced. Instead, the cost of litigation has expanded enormously, and many of my colleagues complain about the remorseless onslaught of more and more conferences. Did we establish by any research that cases were drifting? Do we have any evidence that case management fixes a problem, or that there was indeed a problem at all. The District Court Rules in New Zealand have just been radically reformed. Where is the research based evidence that the changes were needed? There may be a need for change, but we must do so on a proper basis.

The real problem in New Zealand, like that in England, is the enormous expansion in criminal work. This sucks away resources for civil work. Perhaps we are looking at the wrong area for reform. The way in which we approach criminal work, as I have suggested in earlier posts may need a review, and indeed the Law Commission is doing so, I hope based on proper research. There are some obvious ideas. Permit better grants of legal aid for sentencing, ensure that over prosecution is reduced and send more work to the District Court. Chief District Court Judge Russell Johnson recently observed that a high percentage of District Court cases are withdrawn, and I would assume the wasted resources are obvious. In addition the prosecution of drug offences has escalated, with a greater number of methamphetamine cases.

So, to enable us to deal with criminal work, we have developed the thesis that ADR and mediation should be used to divert the civil work away from the courts. I am keen to read Dame Hazel Gunn’s Hamlyn Lectures. I may even send a copy to the Rules Committee.

Tuesday, 22 September 2009

Quality of Lawyers

The Attorney-General Chris Finlayson has ruffled some feathers with a recent attack on the poor standards of some lawyers. He said in the article from the Dominion that

“Too many lawyers practising at the bar are incompetent, or worse, and there is no proper means of assessing their competence or requiring them to be properly educated.

"We're breeding a class of barristers who don't even know how to address the court, much less know how to cross-examine, write submissions and act in a professional manner."

He suggested that the courts should have powers to order lawyers to pay costs personally when they waste court time. This power already exists, as may be seen from my previous post. It is rarely used, but the incompetent and intemperate are sometimes ordered to pay client costs themselves. Perhaps in the erudite and sophisticated word of Mr Attorney, he has not seen the sometimes sharp reminders from some of our Associate Judges such as Tomas Kennedy-Grant, who regarded standards as part of the training given to the often junior counsel appearing before him. He reminded them, in a careful and direct fashion, when the standards had slipped, with always great observance of form and courtesy. The bustle of a District Court civil list may also be too far removed from Parliamentary ritual, but I guarantee they are more polite than some exchanges in the bearpit of the Beehive.

The further point he makes about further education, is long overdue. Those of us who go to the trouble of attending seminars have a commitment to keeping up to date. As a practising panel member of the Arbitrators and Mediators Institute I must keep up continuing training points each year. This has been suggested for lawyers too, but we still do not have any requirement to undertake any study after graduation and admission to the bar. Most professions make further training compulsory-lawyers must do so to maintain standards.

As to addressing the court Judge O’Donovan has written a most useful book, now in the 3rd edition, which should be required reading. It can be bought from the Auckland Law Society or CCH (members get a better price.)

Friday, 18 September 2009

Legal Costs, and how to add to the pain

The costs resulting from a law case have interest for both the consumer, (if that is the correct term for someone who must swallow large and painful morsels of legal fees) and for the lawyers as a matter of legal principle. Some case must be taken in drafting a claim, because the costs may rebound on a plaintiff if improper matters are brought and not proved. There is a legal maxim that costs follow the event, as illustrated recently. In Phillips And Anor v Gould HC AK CIV 2003-404-5062 11 September 2009, Justice Peter Woodhouse awarded the defendant (a well known Auckland barrister ) indemnity costs. The plaintiff is an Auckland solicitor, who took exception to Mr Gould’s handling of work on a commercial matter. The judgment tells a sorry tale of the plaintiff’s failure to observe timetable orders, delay in complying with other orders and finally persuing a claim which was not only hopeless, but also alleged fraud and deceptive conduct. It is a well known principle that an allegation of fraud must be brought with care, because if you do not succeed, the costs awarded will be the actual costs of the case. (Normally they are about 60%). The judge strongly criticised Mr Phillips and ordered him to pay the full costs. The tenor of this form the judgment at para 27 “The negligence claims of the plaintiffs failed in respect of all elements of a negligence claim: there was no duty of care; if there was a duty there was no breach; if there was breach, any breach was not causative of the claimed loss; the claimed loss was not established.” And at para 31 “The claims failed because the plaintiffs did not have available any material evidence in support of elementary contentions the plaintiffs had to establish, save in respect of the possible duty of care owed to Brambletye Holdings.” Finally at para 40 “My overall assessment is that Mr Phillips, for himself and for Brambletye Holdings, which he controlled, acted improperly in bringing these proceedings and then in continuing them. I cannot avoid the conclusion that Mr Phillips cast around for somebody who he might sue, if he could find a semblance of a claim, for the purpose of trying to recoup some of the losses that Mr Phillips had sustained through his own mismanagement of Brambletye Stud and, in respect of Mr Plumley, through his own breach of fiduciary duties and negligence.”

I do not comment further, leaving the judgment to say it all.

Wednesday, 16 September 2009

Punishment and the death penalty

There is a thoughtful article in the latest New Yorker on the execution in Texas of a man charged with murdering his young family by arson-he was said to have deliberately burned down his house, with the children inside. In 2004 he was executed by lethal injection, despite a round of appeals. More recently, forensic scientific evidence appears to show that his (innocent) version of the events may have been correct. In New Zealand we do not have the death penalty any longer. The frenzy which surrounds every high profile sentencing will no doubt draw out the hanging posse from the darker parts of the Sensible Sentencing trust. The Texas case is a troubling story of a combination of small town justice, with added factors which have themes in New Zealand. The defendant could only afford their equivalent of a legal aid lawyer, who appears to have done his best with inadequate resources. But, the worst part is the scientific evidence, which appears to have been, in the words of the article, more “characteristic of mystics or psychics”. Prisoners on death row in Texas do not have access to much except mostly projects run pro bono, such as the Innocence Project.

We are reminded that even the most horrible offenders should have adequate resources to defend themselves, and that the system does get it wrong sometimes.

Tuesday, 15 September 2009

Latin and the law

As recently as the 1940's Latin was a requirement of the law degree in New Zealand. Latin and Greek were essentials of an arts education in most European countries, and the settlers ensured that all the schools taught these. Both lawyers and doctors were expected to have at least a grasp of the basics. Our present Chief Justice has made no secret of her desire to remove as much Latin as possible from New Zealand law. The problem is the perception of Latin as an elitist subject used to ensure that law is kept as an arcane secret from the common herd. But, Latin has been an integral part of the common law from its beginning. The use of pithy Latin phrases often carries significant meaning, much as maori proverbs do. The limit has been reached however in the new District Court Rules where I find that the plural of "memorandum" has become "memorandums". Alas, the barbarians have entered the city and reside in the Parliamentary drafting Office. To this I can only say o tempora o mores!

The English House of Lords does not have such inhibitions. I noticed in the recent case of Moore Stephens (a firm) v Stone Rolls Ltd [2009] UKHL 39 (30 July 2009) the first judgment began by citing the legal maxim of "ex turpi causa non oritur actio" without providing a translation. Clearly English lawyers are expected to understand. We risk being seen as uneducated and rustic colonials in the Common Law world.

(Any non lawyer readers who need translation should ask)

On line comments

A timely reminder from the New York Times about the care needed by lawyers in posting on social networks. A successful lawyer requires balance-while you may think a judge is wrong or inadequate, your remedy is the highly structured system of appeals or the official complaint system. In New Zealand we have a Judicial Complaints Commissioner but the reality is that a complaint is a high risk. If you don't succeed it could end your court career, especially in a small town. However I don't think we have too much to complain about here. The worst behaviour is usually impatience with stupidity, and stupidity is something judges have to endure frequently. We have had some colourful judges in the past. The late Justice Morris attracted his share of complaints, although my experience of him was a low tolerance for fools, and somehow I managed to avoid any direct hits. I was talking recently to very senior lawyer who suggested I should write about some of the others. We don't have many biographies of judges- Sam Mahon's My Fathers Shadow is an exception-but is more about the father son relationship than the judge. There are some barbs reserved for other judges however. The others published recently are just collections of war stories. We have a need for more intellectual analysis of our judges. Unless we know how they really think, the context of their decisions may be obscure. Members of the Critical Legal Thinking school may have strong views about judges, who are mostly appointed from very conventional middle class backgrounds. They must reflect the values of their class and upbringing, and to be able to reach into and understand those from outside of the barricades would be a massive adjustment.

Friday, 11 September 2009


There is a lot of media rhetoric about the defence of provocation. The recent unsuccessful use of the defence in the Clayton Weatherstone trial, and the Auckland case where it was successful, of Ferdinand Ambach have now attracted a change in the law. The New Zealand Law Society has opposed the change, submitting the present law is adequate. There is a need for clear thinking on the topic. Murder has always required what can be summed up as murderous intent. You have to form the intent that you are going to kill someone. If you are defending yourself, and in the course of the struggle, kill the attacker, you do not have murderous intent. If you are insane, so that you do not understand the nature of what you are doing, then you do not have murderous intent as your mind is clouded by the mental illness. Provocation also requires that you act without thinking, in reaction to something, and if the result of that act is a killing, then you did not have the murderous intent. Sometimes this is run as temporary insanity, but the logic is the same. What we need to avoid is using the unusual and possibly unique facts of these cases to justify a change, without some better evidence that change is required, other than the ever popular political wish to be tough on crime.

Thursday, 10 September 2009

Sale of Liquor

As an addendum to the last post I read an article in New Scientist which argues for the use of empirical evidence in government decision making. In the area of law reform this must be critical, as the only reason for changing law can be that there is a properly demonstrated need for the change. It is one thing having a social problem-and another to come up with the empirical evidence that the law change will solve the problem. Restrictions on the sale of liquor were spectacularly unsuccessful in the Prohibition era in the United States. I was brought up in Mt Roskill, Auckland, which was a dry area, where sale of liquor was prohibited. Our local scout troop used to fundraise by collecting empty beer bottles in Mt Roskill and always made large amounts of money. It may be argued that the reason for the evident failure of that restriction was that Mt Roskill was surrounded by places where liquor could be bought, only a 10 to 20 minute drive away. The restrictions now discussed will suffer from the same problems. Passing laws is only an answer if empirical evidence can demonstrate, to an appropriate standard, that this will solve or ameliorate social drinking. I wait with interest to see if the Law Commission will undertake this level of analysis.
As an aside, when we talk about abuse of liquor, we always talk about alcohol, as if the use of the scientific term adds weight to the discussion. I have never heard of sauvignon blanc or claret abuse, although I may have engaged in such abuse myself.

Tuesday, 8 September 2009

Sale of Liquor and the Law Commission

Law Commission

Recently the Law Commission announced that it was to undertake a comprehensive review of sale of liquor legislation.[1]The initiative was from the previous Labour Government, perhaps not surprising considering the long standing interest of the Labour Party in liquor control.[2] The brief was summarised by Rt Hon Sir Geoffrey Palmer to the Alcohol Advisory Council, 'Working Together' Conference, in Wellington on 15 May 2009 as:-

“The central issue for the Law Commission project is whether the pendulum has swung too far in the direction of liberality and the availability of alcoholic drinks and, if so, what measures can be adopted to combat the situation and limit the harm that it causes. Two things are necessary for that test to be met. First, there has to be an identifiable and explicit harm. Second, it must be shown that the measure proposed is likely to address the identified harm effectively.”[3]

The central issue is whether the Law Commission is the right body to undertake such a review. The mandate for the Law Commission is contained in the Law Commission Act 1985 and in particular Sections 3 and 5. It is important to set these out.

Section 3:-


The purpose of this Act is to promote the systematic review, reform, and development of the law of New Zealand.”

And Section 5:-


“(1) The principal functions of the Commission are—

(a) To take and keep under review in a systematic way the law of New Zealand:

(b) To make recommendations for the reform and development of the law of New Zealand:

(c) To advise on the review of any aspect of the law of New Zealand conducted by any Government department or organisation (as defined in section 8(2) of this Act) and on proposals made as a result of the review:

(d) To advise the Minister of Justice and the responsible Minister on ways in which the law of New Zealand can be made as understandable and accessible as is practicable.

(2) In making its recommendations, the Commission—

(a) Shall take into account te ao Maori (the Maori dimension) and shall also give consideration to the multicultural character of New Zealand society; and

(b) Shall have regard to the desirability of simplifying the expression and content of the law, as far as that is practicable.

(3) Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers under—

(a) this Act; and

(b) any other Act that expressly provides for the functions, powers, or duties of the Commission (other than the Crown Entities Act 2004).”

In this paper I suggest that the Law Commission has exceeded its mandate in undertaking this review, and is not only the wrong body to do so, but has stepped into an area well outside that of law reform, into social policy, which is a different discipline and requires an approach not bounded by the limitations of law reform and statutory recommendations.

The purpose of the Law Commission is clear in the statute. The job is to reform law. However the task of redrafting sale of liquor legislation is one matter. To decide whether the current law is too liberal (or not liberal enough) and whether it causes a harm must be well outside the ability of law reform body to determine.

To do so it is necessary to unpick the quote and other references made by Sir Geoffrey Palmer. He acknowledges in his 15 May 2009 speech that attempts to control liquor in the United States by prohibition laws were a spectacular failure. In the quote cited however, he raises the issue of whether the law can address the harm which is now said to be present[4] and tolerated by the present law. What effectively he suggests is that rewriting liquor laws will solve the problem, or that by changing the law we can get people to stop drinking too much, which I suggest is a fundamental fallacy. Some further guidance to the thinking of the Commission on this aspect is in an earlier speech given by Rt Hon Sir Geoffrey Palmer at the NZ Police 'Alcohol Related Harm' Breakfast, in Nelson on 24 April 2009,[5] where he suggested that the Commission may recommend an Act to be called the Alcohol Harm Reduction Act and said:-

“ The object of this Act is to establish a system of control over the sale and supply of alcohol to the public with the aim of contributing to the minimisation of harm caused by the misuse of liquor ad in particular the reduction of health harms that result from alcohol consumption, the prevention of crime and disorder associated with the use of alcohol and the protection of children and youth from alcohol related harms”

He acknowledges that the previous liquor legislation, prior to the Sale of Liquor Act 1989, was complex and when reformed led to the cafe and restaurant culture now widely accepted. The underlying thesis is that if we make significant changes then we will address the social harms. The particulars appear to include dropping the alcohol limits for drink driving offences, restricting advertising of liquor and reducing opening hours for licensed premises.

I question whether the issue of the harm caused by excess alcohol consumption can ever be solved or even modified by such measures. The complex liquor laws from the past, from days of 6 o clock closing, to the present have not ever come close to changing those who are addictive to alcohol, from stopping drinking. I would suggest that the initiatives from Alcoholics Anonymous (who don’t have any statutory recognition) have achieved far more for assisting problem drinkers than any statutes on the books. Closing an inner city bar at 6 am is not going to stop a rural farm worker from over indulging at a party in the local woolshed.

The whole history of sale of liquor legislation is littered with attempts to change drinking patterns. We are hampered by lack of real empirical evidence as to how these problems arise. For example, in the period after 6 o clock closing was introduced, what was the percentage of car ownership? How does the introduction of cheap Japanese imported cars, making cars affordable for many more people, affect the temptation to drink and drive? What is the effect of the secularisation of new Zealand, reducing the religious based objections and social controls? Those and many other interesting questions cannot be resolved by restricting advertising or closing bars early, or preventing alcohol from being sold with vegetables.

More importantly is it within the jurisdiction of the Commission to be suggesting controls as to sale of liquor to solve social problems?

[1] Comprehensive Review of Regulatory Framework for the Sale and Supply of Liquor

Published 6 Aug 2008

[2] One of the founding strands of the Labour Party was in the Temperance movement.

[3] The speech is found at

[4] For the purpose of this paper, and it cannot be seriously argued to the contrary, it can be accepted that excess alcohol consumption by some people is a serious social problem in New Zealand


This article is now in New Zealand Lawyer Issue 122

Maori Land Court

I have just spent a day in the Maori Land Court in Rotorua. Because of a shortage of space we were moved to the District Court for the hearing, and ended up in a jury trial court room. Many of the supporters ( well 12 anyway) ended up in the jury box and the rest were crammed into the back. The court was adequate for the lawyers, but in the Maori Land Court, it is usual for families to appear and support (or oppose) the matters being heard. The Mari Land Court it self was renovated recently, and is a wonderful courtroom, with both traditional and modern Maori themes,with much native timber, in a warm and welcoming space. The court has been given more jurisdiction, which means more work, and I hope that the court will be properly resourced. They have a good start, but cannot be treated like a poor relation of the other civil courts. There is competition for the tax dollar but the Te Tiriti principles mean that both streams of jurisdiction should have equal resources. if this means more court rooms of adequate size, then that is what should be provided. The court staff do what they can, but the issue needs attention at a higher level.

Thursday, 3 September 2009

Lawyers fees

I have just been advised that I have been appointed a Costs Assessor for the New Zealand Law Society. There is an interesting change from the old legislation in that it is not just the amount of the fee which can be examined, but also anything else which arises from looking at the bill of costs, which would would assist the Standards Committee. The Standards Committee look at any complaints not just as to fees. After my comments on Legal Aid below, this may be an interesting contrast. It also reminds me that I published a brief article on Scale Fees for Conveyancing back I think in 1979. Fees have changed much in the last 30 years! The concept of scale fees would probably now attract the attention of the Commerce Commission and the size of some fees would astonish some. But, the practice of law is very market driven and competition means that fees are often affected by whatever the opposition charge.

Wednesday, 2 September 2009

Legal Aid

The report from Dame Margaret Bazley is on the face of it, somewhat damning of the legal profession. She attacks "car boot" lawyers who maintain a low cost practice with few of the trappings of a usual law practice, and who take on more work than they can actually handle. The overheads of running a law practice are not small. With the licence fee now about $1800 per annum, professional indemnity insurance at at least $3000, and the need to have at least minimum computing equipment costing around $3000 the attraction of working for $105 an hour seems difficult to understand. It would be hard to rent space, even in the most unattractive rooms, for less than $200 per week and the cost of a phone would be at least $200 a month. This at the very minimum, would be about $20,000 and once the cost of photocopying, stationary, postage and faxes, plus the very minimum law texts, then I would think very few spend this small an amount. Even the car boot must come attached to a car, and the travel costs are not small. The $105 per hour only works if you have continuous work, and plenty of trials do not proceed. The Legal Services Agency used to (and I expect still does) scrutinises bills from lawyers carefully, and only allows a set time for preparation and not all adjournments are approved. I rather think some lawyers take on a legal aid role because they cannot find a firm to work in. Others do so for choice, but Gary Gotleib astutely observes that in private practice the hourly rates are much higher and he says a lawyer had to be a "mug" to choose criminal law. The reason that the legal aid system has problems is that the rates are too low, not the other way. More experienced lawyers would take on the work, and operate more efficiently.
Other factors also affect the higher costs. Some years ago much of the approval of legal aid applications and of the bills was handled on a voluntary basis by local committees of lawyers, working as unpaid volunteers. They had local knowledge of who was competent, who was overbilling and who was efficient. Instead we now have a large bureaucracy of paid employees. They seem to be adequately competent, but not unreasonably want to be paid. Offices have to rented and a central office is required. It would be valuable to compare the old system in terms of costs. It is too late to return to this. I believe that lawyers have been discouraged from much pro bono work such as this, at least for lack of thanks and recognition.

What is the answer?

Encourage more appropriate charges instead of over prosecution-always a problem. Then, if the appropriate charges are laid, encourage more guilty pleas by use of greater allowances for preparation for sentencing, more use of restorative justice and more resources for expert reports such as drug and alcohol abuse, psychologists, and better probation reports.

For civil legal aid, roll out the mediation model which is to be introduced for family law, and use legal aid to fund mediation in more civil cases.

The rest? Just accept that where the rule of law applies some people will need adequate lawyers but cannot pay for them The cost of large numbers of unrepresented parties will be far greater than the costs of legal aid.

Friday, 28 August 2009

Boring law

My children all consider my profession very boring-at least in part because I do not tell them much about what I am doing out of the habit of keeping confidentiality. Much of the human interest is taken away for them But, there are some ares of law that make my eyes glaze over, just as my children react. Tax is not one of those because there are often stories of human striving or great failures or even audacity and immense greed. These extremes provide a moment of jawdropping surprise or a great laugh.
What leaves me cold are those esoteric examinations of the fine details of resource management law as applied to competing supermarkets seeking to exclude the other from a site. Town planning now sounds a bit perjorative, even Stalinist. If we describe it as resource management then it sounds as though we are being wise custodians of the planet. But what ordinary citizen cares about the location of a supermarket or petrol station, save in terms of their own convenience? How is this "saving the planet"? The judges inflicted with these applications must feel like telling the parties to pick up their toys and go away.

Friday, 21 August 2009

More sentencing

Continuing my theme on sentencing-in the Dominion Post this morning Judge Moran questioned why the Police had charged 3 men with intellectual disabilities for minor offences. What indeed is the point-is this to deter people with disabilities from other offending? I know nothing about the background, or the extent of their disabilities. But, the whole exercise is a complete waste of time if those men operate at a child's level, where they do not understand that what they have done is supposedly criminal. Children do the same things all the time-but are not dragged into court. Even if these men are fined, the fine would come out of a disability benefit. If they were jailed that would be inhumane. They may not not able to undertake community work-I cant say without any more information. So, what does the judge do? All he can do is discharge without conviction, or conviction and discharge. Shame on whoever thought this was a good idea.

Thursday, 20 August 2009


My blog is a bit obsessed with sentencing of late. A story from the New Zealand Herald is a change from the usual rant by the outraged however. The courageous young woman says she forgives her attackers, and while she thinks they should get a stiff jail sentence, (and I am sure the judge will oblige), this real compassion is a refreshing change.

Tuesday, 18 August 2009


I recently read an article about Rikers Jail in New York . For anyone who thinks of jails as a soft option, the reality of this article is sobering. It also demonstrates that we have a confusion between the function of jails as holding pens for criminals, but then fill them with inmates with mental health problems. We need to evolve better models, to provide the appropriate place for the career criminal and those with problems. I suspect the prison for career criminals would be small.
Justice France realised this when he sentenced in the recent case over the maketu curse, and despite Trevor Mallard's intemperate response, the result shows both mercy, and recognition of the unusual nature of the case. Jail simply would not achieve anything for the family, who are no doubt struggling to understand their own actions. But, they did receive substantial sentences of community work, which is not an easy option.

Monday, 10 August 2009

AMINZ Conference

I was at the Arbitrators and Mediators Conference over last weekend. Among other papers I presented one on an update for Building and Construction Law, which will be posted on the AMINZ website. I also received my Fellowship Certificate, and a prize for Best Mediation Agreement. Apart from the personal matters, the conference was a great success, with many well considered papers and presentations., and a real tribute to the effert of the organisers. It seems that alternative dispute resolution is growing and actively taking over court work. If we could learn to mediate more crime perhaps we wouldnt need to put prisoners in shipping containers!

Tuesday, 28 July 2009

Sentencing and the Chief Justice

There has been a great deal of comment about the recent speech given by the Chief Justice on the topic of overflowing jails. What is curious is that the attacks are not on the common sense of her suggestions but suggesting that it was not proper for her to make suggestions of policy about criminal sentencing. The predictably shrill response from the Sensible Sentencing Trust and David Garrett, the spokesperson in Parliament, seem to overlook that she has effectively been chief executive officer of the bench for many years, and has a great deal of empirical evidence about the efficacy of various forms of sentencing. The Sensible Sentencing Trust on the other hand appears to have a ghastly unforgiving attitude that comes close to a totalitarian state such as North Korea. At one stage Russell Fairbrother, formerly a labour MP, suggested we needed a Really Sensible Sentencing Trust. The groups who work with prisoners such as the Salvation Army and the Howard League are rarely consulted by the media. I despair of the narrow and Draconian view of sentencing but do not expect that the sometimes lazy news media are prepared to look more deeply at why judges sentence in the way that they do. There does not seem to be any room for humanity or redemption.

Saturday, 18 July 2009

Hard legal jobs

I read the NZ Herald article about Jonathan Moses, who has just returned from prosecuting in Rwanda. For every lawyer who is made the subject of derision there are also those who take on often poorly paid jobs where you can achieve some real standing and recognition. The trauma of just reading the description of the massacres, let alone listening to the evidence, would shake the strongest will. I have tremendous respect for him and his courage and selflessness in taking on this role. He is the role model for lawyers rather than the slick commercial lawyers who take pride in their latest IPO or deal. Kia kaha! He deserves a comfortable slot somewhere in New Zealand-I hope he is on someones list!

Wednesday, 15 July 2009

I have been following the body "snatching" case in the Christchurch High Court. There is an interesting conflict between Pakeha law and Maori tikanga. It is well established law that the executor of an estate has control over the body, and that she would have the right to determine the method of burial. Against this, it is also not uncommon among different members of a whanau or hapu in Maori families to dispute the place of burial. Clearly Maori tikanga has a diffrent set of concepts as to ownership os the body and disposal after death. The sad factor is that there was no real attempt to mediate before the body was taken up north. Cross cultural mediation is a challenging area that will dig right into the comfort zones for both parties. But my thoughts are for Justice Fogarty, who will know that he will have to decide a matter which will leave one party very unhappy. There is no "right" answer.

Tuesday, 14 July 2009

Today I presented a paper on my Kazakhstan experience to the Wellington AMINZ breakfast meeting. It was well received, with thoughtful comments and questions. In preparing the paper, I reflected on the use of ADR in a society where mediation may be seen as a weak approach to problem solving. Perhaps we need to sell mediation as the adult approach, rather than the combative sport of litigation.

Friday, 10 July 2009

I have just been advised that I have been approved as a Fellow in Arbitration by the Arbitrators and Mediators Institute ( I am now a Fellow in both Arbitration and Mediation.

Tuesday, 23 June 2009


New papers I have written recently are in New Zealand Lawyer Issue 108 20 March 2009 and New Zealand Law Journal Schemes of Arrangement under the new Insolvency Act 2009 [NZLJ] 47. The first is also at

Swine Flu

Waiting for the plague (after Cavafy)

Why are we gathering the young and old,

Sealing the doors and windows,

Cleaning and sterilising the parts we never usually touch?

It is the plague

The wind of disease is about to sweep through the city

Leaving piles of dead and the howls of survivors

Why are our leaders gathering

Their faces solemn and dark

They are calling the experts and the doctors and the civil servants

Meetings are called and dire forecasts mournfully read

Coffins are counted and medicines hoarded

Plans and advice are freely spread

The schools are closing and the factories grind down

The rich flee to their holiday homes and the politicians find excuses to travel away

The bourgeois huddle anxiously (but not too close)

The bars carry a higher pitch of anxiety

But the people cough and then so many miracles

The plague passes and there are no dead

Why were we waiting to die?

The plague, it was a kind of reason to exist

A frisson of excitement instead of collapsing banks

We cannot die from running out of money

But the plague would be a kind of solution