Friday, 17 December 2010

Insolvency Schemes

A helpful decision in the recent case of Thomas v Trustees Executors was delivered today by Associate Judge Faire. This shows that a sensible scheme can still pass muster and gain approval. I argued the case for the Trustee and there was a young but very competent lawyer, Bridie Balderstone, from Buddle Findlay, to oppose. It makes sense not to take down people who can otherwise be good earners where bankruptcy would end their careers.

Thursday, 16 December 2010

Pike River Receivership

I do not often blog about me, although this seems to be the purpose of a blog. This time I just mention my TV 7 interview about the Pike River Receivership, with some quite hard questions. Look at their website at http://tvnz.co.nz/tvnz-news-at-8/video

Thursday, 25 November 2010

Police chief calls for cut in prisoners | Stuff.co.nz

Police chief calls for cut in prisoners | Stuff.co.nz
Hello Mr Obvious! He has become concerned that there is a university of prison which adds to the probability of further increases in numbers of inmates. And why is this we may ask? Because both the Labour and National Party have shamelessly bowed to the fanatics in the Sensible Sentencing Trust, and imposed greater sentences by legislation and told the judges to increase the length where the act prescribed long sentences already. Mr Broad is quite right-when will we stop this horrific incarceration rate that makes a mockery of our so called liberal society?

Friday, 12 November 2010

Forum Conveniens

Leading from my last post about travelling, I have noted the recent case of Udovenko v The Ship: MV Pelican8 November 2010 Gendall J High Court, Nelson CIV-2009-442-514. 


This was an admiralty case in which the defendant sought a stay of the case because there was a better forum, being the courts of Australia, and where it was argued, the Australian law applied to the contract. Justice Gendall observed 2 things which may be important for choice of courts, that the Australian litigation would cost more than New Zealand litigation, and that the growth of videoconferencing means the arguments about the location of witnesses to support a change of court, may not have the same weight any more. He declined the stay enabling the plaintiff to continue in the New Zealand High Court.


As an aside, this means it will be in the Nelson Registry, which when I last attended had a very friendly refrigerator with beer and wine left for the lawyers on an honesty system. That alone, if it still exists, must be a compelling reason for keeping the forum as the Nelson High Court, although I suspect Justice Gendall may not have factored this in.


It is a while since I argued the decision in Air Nauru v Niue Airlines Ltd - [1993] 2 NZLR 632, where these issue were argued in the context of liquidation proceedings, which effectively trumped the exclusive jurisdiction clause in the contract.   




Sunday, 7 November 2010

Travelling



Size like time is relative, and depends on the perspective of the occupant. I have noticed in travelling that there seemed to be two types of people, those content with where they live, and those who have passports in a state of disrepair. This does not seem to depend on where you are, but rather on a restlessness that seems to compel the travellers to move on every few years. Part of this seems to be that a traveller will explore their (temporarily) adopted home, perhaps more thoroughly than the occupant. How many New Yorkers have bothered to ascend to the top of the Empire State building? I suggest many visitors do. For the steady homebody, there is no compelling need to explore, to constantly look for the new. They are cursed with satisfaction. Their home is just the right size, and they shudder at the thought of the smaller or larger alternatives.

I remember meeting an old inhabitant in a pub, the sole pub in a small country location which barely could be called a village. When I told him of my home city, he sounded dubious, wondering how dangerous it was. He had barely travelled beyond the small and scarcely populated coast, but was clearly content with the limitations. I had similar conversations with friends from my own city in talking about Asian cities. My friends thought the size and population was overwhelming and clearly dangerous, although my own experience was that I felt safer. In fact, after living in very large cities I felt uneasy in smaller places, with almost no one on the street.

Early man appears to have had a very long time living in roving bands of hunter gatherers. The city dwellers are very new, and seemed to have started in the Middle East and China, where the urban tradition has a continuous lineage. No doubt the new city dwellers decided they felt more comfortable with the increased numbers rather than roving in a small band of rural hunters.

The restless travellers may be a reversion to those early hunter gatherers, constantly seeking the new game. We settle down, explore where we are, and then look for what is over the next bridge. Familiarity has made our home shrink, so we look for the edges, and set off to explore again. We forget the stress of modern travel in the need to find the next apartment, the new local restaurant and check out the vagaries of the local bus system.

Travellers never take holidays in the same place, or if they do are vaguely dissatisfied with the familiar. The homebodies have a camping ground or a holiday home where they and their family have happily settled, taking comfort in the familiarity and complaining if there is development changing their surroundings.

The comfort of the familiar is tied to the size. The size is not important, for it is the right size to those who live here. Those who move from the country to a city slowly lose those ties and settle in. The travellers seem to be more urban. I cannot think of any of my family in recent generations who have lived in the country. We are mostly travellers, and even if we settle into one place, find the need to travel for work or holidays. Our local world becomes too small.

For me, there is a huge comfort in knowing that within my lifetime I will have the opportunity to travel outside planet Earth. The first pioneers are selling seats, and there is talk of the first hotels in orbit. With hotels, will inevitably come the first settlers, who will be travellers in a whole new sense.

And yet, when I talk to many about the chance to go somewhere truly immense like leaving planet Earth, they shudder. They talk of the dangers, the new technology, the risk. And, they quietly pack the car and drive off to the family beach house, in the comfort of knowing that it is unchanged from last year.

Are we as travellers the descendants of the hunter gatherers, or are we descended from those who broke away from the traditional hunting grounds for the adventure of building a new city? And having built that city, did the travellers become restless and form a new settlement? I think the ancient Greeks were travellers. They founded colonies all over the Mediterranean, and travelled to Britain and Africa and China. The Romans, still considered that all roads lead to Rome. They sought to duplicate the Roman model in cities they founded, with temples, a forum, a gymnasium and an amphitheatre. The Greeks seem to have adopted local customs as well as maintaining their Greek culture, as can be seen in Egypt with the Ptolemys. While the Roman Empire was always larger than the Greek sphere of influence, the Romans felt the need to impose Roman customs and Latin, so they had the familiarity of home.

The new Romans, from the United States, impose their culture so that on their travels there is always the comfort of a McDonald's or Starbucks coffee. American television is ubiquitous and Hollywood still dominates large and small screens. And yet, American travellers have reached the moon. But travelling through the United States, I found many of my family never had passports, much like Sarah Palin. American culture filled all their needs, and the concept of looking at St Petersburg or of travelling to Samarkand was alien to them. Those who were compelled to travel to unpromising locations like Iraq or Afghanistan did so by creating their own encapsulated pieces of home culture, complete with fast food, entertainment from home and living in isolated camps to pretend they were still at home.

Perhaps the traveller impulse was met by their ancestors in their often epic journeys to the United States. I hope not. There are still travellers, designing the new spacecraft, drawing the plans for the space hotels and even those listening for the messages, which will give them a goal to travel to. 

Friday, 5 November 2010

Cross Border Insolvency

My latest article in New Zealand Lawyer Extra on the Williams v Simpson case. This case is about the very large haul of gold discovered in Hamilton under an otherwise unprepossessing house, and the efforts of an English trustee in bankruptcy to seek the aid of the New Zealand courts to help uncover the assets of a bankrupt hiding in New Zealand.

Beehive - Minister opens Auckland Drug Treatment Unit

Beehive - Minister opens Auckland Drug Treatment Unit
I am not uncritical about jails as some may notice. But this initiative has to be a start, and the more the better

Iowa Judges Defeated After Ruling on Same-Sex Marriage - NYTimes.com

Iowa Judges Defeated After Ruling on Same-Sex Marriage - NYTimes.com
After the fuss over Justice Bill Wilson perhaps we can be pleased that in New Zealand the judges cannot be removed by the ballot box as occurred in Iowa. the Iowa judges made a ruling regarded as too radical by the electorate, and in the recent elections were recalled. Apparently the bench has a long tradition of judicial activism-
"From its first decision in 1839, the Iowa Supreme Court demonstrated a willingness to push ahead of public opinion on matters of minority rights, ruling against slavery, school segregation and discrimination decades before the national mood shifted toward racial equality. That legacy was cited in liberal corners here last year when the seven-member court voted unanimously to strike down a law defining marriage as between a man and a woman, making the state the first in the Midwest to permit same-sex marriage."
I am not sure our judges would feel comfortable with this close relationship to the electorate. Most are pretty conservative on such issues anyway, but the inhibition of potential recall would send a cold chill.

Tuesday, 2 November 2010

Kristof, Crouch, Soros, and McNamara on Prop 19 - Brainstorm - The Chronicle of Higher Education

Kristof, Crouch, Soros, and McNamara on Prop 19 - Brainstorm - The Chronicle of Higher Education
I doubt that the New Zealand government will take much notice if Proposition 19 is passed in California. But scientific evidence seems to show that the laws against cannabis have been as effective as the Prohibition in the United States in the the 1930s. The cost of enforcement and the loss of tax from the revenue make a strong economic case for liberalisation. After all, if gift duty is to be abolished because the cost of compliance is regarded as excessive, then cannabis must also qualify. Like so many social issues, we lack proper analysis of this to make an informed decision. Where are the rigorous studies and the objective assessments? I am unsure myself about the social harm caused by cannabis use. Some do abuse it-there is no doubt. Others seem to cope despite regular use and carry on conventional lives. Just do the work people! I would really like to know!

And as a supplement, Proposition 19 did not pass, so we will not know if this would have worked.
From the LA Times

Proposition - 19 - Legalize Marijuana - Ballot Issue
California - 24845 of 24845 Precincts Reporting - 100%
NameVotesVote %
No3,978,31454%
Yes3,412,38746%

Thursday, 28 October 2010

Judicial Bias In Australia


Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 222  is a recent New South Wales Court of Appeal judgment which has an interesting spin on disqualification of judges for bias. The case was an appeal against an action in the Supreme Court which resulted in a very substantial award for the actions of some Australian lawyers in Kazakhstan in leaving their old law firm and taking the clients with them. The law firm then took global action against the Australian lawyers, which for those who know me will be aware I was briefly involved. My part was a bit part of no consequence, but the case has created some interesting law, not much of which survived to the Court of Appeal. In this note I will just deal with the bias aspect because this has some resonance for New Zealand lawyers following the recent resignation of Justice Bill Wilson from the New Zealand Supreme Court.

The Nicholls case is somewhat different, but the NSW Court of Appeal overturned the decision on a number of grounds including what is described as a reasonable apprehension of bias. The court held that because the judge heard a number of ex parte applications over a lengthy period, in which the courts were closed, including keeping secret files in his chambers at one stage, that a dangerous perception of bias was created. The defendants only became aware of the existence of the ex parte applications and the content and the confidentiality orders late in the day. They made an application that the judge recuse himself, but he refused.The test was applied of whether a fair minded bystander might consider that trial judge might not bring to bear a mind free of prejudice against the party in whose absence affidavits had been read and orders made. It is worth noting that the court identified seven occasions on which the judge had entertained ex parte applications in closed court and  had delivered three confidential judgments and had made confidential orders. There were 3 applications for recusal, rejected by the trial judge.

At  para 10 the court said:-"Because the hypothetical fair-minded observer is postulated to emphasise the purpose of maintaining public confidence in the administration of justice, the postulate has particular relevance in circumstances where a judge may have confidence in her or her colleague’s ability to avoid prejudgment, but the lay observer may not. On the other hand, where the reviewing judge holds an apprehension of prejudgment it seems unnecessary to ask whether that apprehension would be shared by the lay observer. As the present case illustrates, to inquire into the mind of the lay observer may, in some circumstances, require the attribution of quite sophisticated knowledge about how the legal system usually operates. Without that knowledge, the lay observer may say, ‘If that is how the system usually operates, I am content with that’. A judge may know that that is not how the system usually operates, or is not how it should operate. It might be thought sufficient for the reviewing judge to rely on his or her own apprehension of bias in such circumstances, rather than undertaking the wholly artificial exercise of transferring the knowledge of the professional to the hypothetical lay observer. To reiterate, the role of the lay observer may be critical in the reasoning process where the reviewing judge does not personally entertain a relevant apprehension"

However the failure to properly consider the effect of the confidential material on an assessment of the evidence of Mr Wilson where issues of adverse findings were considered, meant that that a lay observer may have thought the judge biased.

The law firm is I expect upset that they have to have a rehearing of the case, although some of the other findings of the judge did not survive either and the result on re hearing may be different. It illustrates the enormous litigation risk, even with the best counsel and leading law firms. But it can also demonstrate the need to focus on a few good points rather take a scattergun approach to litigation. If this had been done, and a more open and transparent approach rather than the secret squirrel approach adopted, the judgment would have been more focused and less susceptible to appeal.

Wednesday, 27 October 2010

Parole system working - study - crime - national | Stuff.co.nz

Parole system working - study - crime - national | Stuff.co.nz
There has to be some good news about crime, and I am confident that with the skill and care and humanity of Judge Carruthers, that this will continue. Now we need to address the prisoners still in jail and ensure they are ready for release. There are some good initiatives there as well.

Friday, 22 October 2010

New District Court rules

This is just anecdotal evidence, but in talking to the High Court staff today, they had noticed an increase in summary judgment applications filed in the High Court but within the District Court level of  $200,000. This is an obvious vote of no confidence in the new procedure in the District Court. This combined with the silly new filing fees (look at this) which instead of rounded amounts are now silly amounts like $408.89 increased from $400, makes me wonder who in the Ministry of Justice actually has any experience at the coal face of practice, and why they appear not to consult with practical people. I despair.

Enforcing liquidated damages: A shade of grey | Magazine Comment | Building

Enforcing liquidated damages: A shade of grey | Magazine Comment | Building: "Enforcing liquidated damages: A shade of grey"
New Zealand law is still firmly against liquidated damages, but I was referred this decision recently via Rashmi Dube-Spruce, who is an English mediator and construction solicitor. I suspect that the particular facts of this case may distinguish it in New Zealand but it may be worth citing. The case is at Azimut-Benetti Spa (Benetti Division) v Healey [2010] EWHC 2234 (Comm) (03 September 2010) 


Wednesday, 20 October 2010

Time Limits

I have started a page on time limits. This was prompted by attending the New Zealand Law Society Seminar on the new Limitation Act, and will be a work in progress. I welcome suggestions. Go to the page at Time limits

Monday, 18 October 2010

Chris Kahui

There has been considerable criticism of Chris Kahui following his evidence at the inquest into the deaths of his children. What haunts me was the story from the reporter who commented on Kahui, after giving evidence, struggling for 4 hours to read the transcript of his evidence. This together with the struggle to give evidence which made sense, and the slowness of answers paints a picture of a man with, at best profound reading difficulties. Those who meet consumers of the criminal justice system report that such difficulties are common. Tony Ellis has commented with some passion on acting for the intellectually disabled, and the difficulty of getting sensible instructions. The problem with Chris Kahui demonstrates that many with learning disabilities also have problems in the justice system, although he would not be labeled as intellectually disabled. Where are the reading and other programs in prisons and where are the community based initiatives to deal with these learning difficulties? Some of the community based programs were abolished with the cutbacks in community education earlier this year. And there are more programs in prison now than under the previous administration. So where does this lead to?
We need to understand that a chunk of our prison population is there because they have education problems of differing degrees, including illiteracy, dyslexia, and even deafness preventing them from understanding what they were taught. So the solution is to punish them by placing them in groups with similar problems, in a place where they don't get much chance to repair their shortcomings. At least we do not execute them or chop off hands, but sometimes I think execution would be preferable for me rather than being locked up for 20 years. Chris Kahui was acquitted, but the profile he presents is similar to many who fall through the education cracks into jail.

Friday, 15 October 2010

District Court Rules

The new District Court Rules-where should I start? I have much respect for the judges who spearheaded the reforms. But I have also heard nothing but negative comments on the vastly more complex forms now needed for the rules to start a new case and much lamenting for the loss of summary judgement at first instance. If the object of the reforms was to make the District Court accessible for lay litigants, then they must have meant lay litigants with law degrees. The Wellington Courts Committee say from Council Brief

"Pleading under the new Rules Committee members have found the prescribed forms that stand in for pleadings under the new system to be very much worse than the old system. The forms are long, repetitious, and difficult to fill out. They do not match each point of the claim with the reply by the defence and so make it harder to identify what is actually in issue. Compared to the exchange of pleadings from previous practice, the forms are slower, and more cumbersome to prepare. They fail to define the core issues in dispute. The additional complication increases expense."


I think the form preparation was captured by Justice staff without any practical experience. What ever was wrong with statements of claim and defence? The issue was not the forms but the gaming, and these new forms must confuse the majority. I could design better forms in a few hours work, although they didn't ask me....
Seriously, there are real problems with the levels of complication. The Disputes Tribunal forms on the other hand are simple and easy to use, and I am increasingly impressed with the rapid and fair approach of this part of the system They are not bogged down with the forms and complex procedure, but just get on with the job. I think Judge Peter Spiller has done a great job of moving the Tribunal into the 21st century, but the new District Court Rules take us back to Jarndyce v Jarndyce.

Thursday, 14 October 2010

Brookers

I have just been given a copy of Geoff Adlam's new history of legal publisher Brookers. This is a fascinating story of how the publisher began with its unique system for annotating statutes. That may not necessarily inspire the reader into picking up the book, but it is rather the soap opera of the early Broker and Friend families which could be the subject of a text of its own. One does not think of legal publishing as any more than a somewhat arid and academic industry, but in fact it does seem to draw in the eccentric and the colourful. This is worth reading so find a copy-or try www.brookers.co.nz. There are only limited copies apparently. Brookers very kindly sent me one, but I would have admired the book anyway. They also have a tradition of hospitality which includes a good pinot noir.

Friday, 27 August 2010

New Paper on Bias


This is my paper presented at the AMINZ Conference as published in NZ Lawyer Extra.

Monday, 9 August 2010

AMINZ Conference Christchurch August 5-7

I am returning to base following the 2010 conference. Our Executive Director Deborah Hart, has organised a full and enriching programme,  which went without any gliches at all. The annual conferences just keep getting better.  Highlights were Attorney General Chris Finlayson's address on settling Treaty of Waitangi claims, Lord Walker from the English Supreme Court and a very full and detailed seminar and paper list, not to forget the dinner at the Air Force Museum with Joe Bennett as speaker,  and the Andrews Sisters emerging from a WW2 DC-3. And my paper on judicial recusal and arbitrators was well received. Just email me if you want a copy. Below are some pictures of me speaking.





Friday, 30 July 2010

Beehive - Amendment eases enduring power of attorney

Beehive - Amendment eases enduring power of attorney
Parliament, after the previous administration blindly accepted a silly recommendation from the officials-I am not sure which are responsible-has acted to tidy up what has cost a lot of old people extra unnecessary legal fees to get these important documents properly executed. There has been a suggestion from the Criminal Bar that the rate of change in criminal law has got out of control and that the law reformers need to sit down and have a cup of tea (in the late David Lange's words). Criminal law is not the only area where this is needed. Some of the law changes are passed without any real practical knowledge of how life really works, and the PPR Act change is a classical example. I will post shortly on the silly District Court Rules and how they have destroyed the District Court as an accessible venue for costs efficient litigation.

Thursday, 22 July 2010

FCC Says Millions Lack Access to Broadband — GigaLaw.com Daily News

FCC Says Millions Lack Access to Broadband — GigaLaw.com Daily News
I am posting this article for 2 reasons. The first is that GigaLaw is one of the oldest blogs I know, and has always kept well ahead of any new legal matters on tech issues, and is always worth checking out. The second reason is the issue of internet access. There is a growing movement based on the idea that access to the internet is a human right and I have some initial sympathy with this. What this is based on is the disparity in information access and social connectivity between those who have such access and those who do not. My thoughts on this will not reach the audience who do not and therefore cannot engage in the debate. Even the most hardened greenies seem to have web pages or Facebook groups. The other matter of concern is that the access is more often based on social and economic disparity. Those at the bottom of the heap, not just in New Zealand but also in 3rd world countries, do not have this access to information and contacts. Some greenies would observe that the infrastructure for internet creates a whole new problem-Google now has vast server farms which consume large amounts of electricity. The infrastructure in places like Haiti for example means that such connectivity is difficult. I have yet to see any paper from our Law Commission on the concept. While they are well established on the web and encourage debate on their new issues, this prime topic has not yet crossed their gaze in to the future.

Thursday, 15 July 2010

Justice clicks into the digital age - National - NZ Herald News

Justice clicks into the digital age - National - NZ Herald News
I suppose I have to note this case, and include some hypertext of my own. The reporter correctly identifies a problem with what he calls internet rot for the linkages. It doesn't seem too long ago I was involved in considering the issue of preserving older volumes of statutes (that is, paper books) falling apart because of the use of acidic paper. See this paper. To day I was writing and modifying a document using Google Documents, which meant that it wasn't even hosted on my own computer and I could work on it from any location without having to use a USB or other storage device. I would guess it may be hosted in some vast server farm in the US. I wonder how we should store the digital judgments? Perhaps we need to consider a server farm in New Zealand which can also host the embedded links to protect against this problem. I am sure Judge Harvey has a view on this. But I would bet he hasn't completed a whole case electronically, if only because the courts system could not cope with this, so as having completed a construction adjudication entirely by email and documents, I am (for a brief time no doubt) one up on him.

Tuesday, 13 July 2010

Gas and energy

The recent decision in Todd Pohokura Limited v Shell Exploration Anor High Court Wellington CIV-2006-485-1600 delivered 13 July 2010 explains why our gas bills for domestic use are so high. There were no less than 6 counsel for the Plaintiff, 6 for the second defendant and 5 for the second defendant. The judgement is 173 pages long and the judge concludes with this comment
"A last word
[526] Any reader with the fortitude to have reached this point of an already overly long judgment will inevitably come to the view that it would be naïve in the extreme to urge that this judgment not be appealed, in light of the amounts at stake and the tensions in the relationship between the parties. Nonetheless, I take the unusual step of recording my view that the issues this judgment leaves the parties to grapple with ought to be resolved by negotiation between them, and not by further litigation. I venture that view not as a Judge apprehensive that the Court of Appeal might arrive
at a different view on any of the material issues. Rather, I do so as a New Zealander concerned that the resource vested in these parties by virtue of the permit they have from the Crown deserves to be managed without the significant inefficiency caused by the distraction of this dispute.
[527] There was general consensus among the expert economists that a GBA is, in all rational evaluations, inevitable. Professor Richardson agrees with that. Even on Todd‘s view of the dispute, flexibility of off-take has substantial value and after the very thorough airing all Todd‘s arguments have had, the prospects of securing any basis for disproportionate off-take without enforceable arrangements to redress the physical and/or financial consequences of doing so are surely negligible.
[528] This is a significant business relationship that needs a thorough breath of fresh air. That is possible in the context of renewed attempts to agree a GBA but seemingly impossible whilst the competing positions advanced in the litigation continue to be pursued."


The judge must have also had his gas bills balloon to help pay for this litigation as well. The Plaintiff lost but the judge says, with some sadness that they will appeal. The end result will not help anyone save the top end legal teams, who are no doubt booking their luxury holidays on the payment of fees and checking out their new cars. In the meantime many ordinary New Zealanders turn down the heat because the costs of the gas has risen well beyond the rate of inflation.

Employment Cases

I recently wrote about a decision of Judge Colgan, praising the humanity with which he approached a difficult employment problem. In another decision the same common sense and decency , and a realistic view of life outside the main cities pervades a judgement about the dismissal of the Courts Manager in New Plymouth. In Secretary for Justice v Dodd [2010] NZEMPC 84 he dismissed an appeal from the Employment Relations Authority, which confirmed her reinstatement, with damages. There are websites which are devoted to criticising judges and by blogging on the good ones I hope to balance those out. I like the decision because he recognises the intimate closeness in a provincial court system, and the difficulties which arise when you decide to look after family, perhaps at the risk of your employment. The respondent was acting to try to resolve a difficult family issue, and acted inappropriately in accessing court records, but understandably to help, among other matters, where bail details omitted from police records would have meant her nephew would have been jailed wrongly.

Tuesday, 1 June 2010

Judge to challenge conduct panel move - national | Stuff.co.nz

Judge to challenge conduct panel move - national | Stuff.co.nz

Quis custodiet ipsos custodes? Of course the Attorney-General as a self confessed Latinist, as the Dominion-Post described him (others with more education may say classicist or scholar) will be aware of this tag. I guess the judge considers that the decision by the Judicial Conduct Commissioner got something wrong-and if a Supreme Court judge thinks that, that must carry some weight. So, if the judicial review proceeds, and goes to the Court of Appeal and then to the Supreme Court, who will make the decisions? New Zealand is such a small place, with so few judges.

Sunday, 23 May 2010

The Postradical Legal Generation - The Chronicle Review - The Chronicle of Higher Education

The Postradical Legal Generation - The Chronicle Review - The Chronicle of Higher Education
The Chronicle of Higher education covers much academic debate particularly about items of interest to academic, such as tenure, funding and the poor quality of the latest batch of students. This article however discusses the conservatism of law school academia. They describe how law school academics usually wear suit and tie but more importantly, their writing reveals deep conservatism. In New Zealand, at Auckland University in the 1970s, the Dean was openly homophobic but displayed no dangerous left wing tendencies at all. Some on the staff were more liberal but in the polite middle class way then fashionable, to disguise their real beliefs. Criminal law specialists were more radical, with Bernard Brown always ready to attack the 70's version of the Sensible Sentencing nutters. And Pam Ringwood taught a new approach to Family Law which I think has not been sufficiently recognised anywhere, but certainly had a powerful influence particularly after the massive and radical change in the 1980 Family Proceedings Act. Most of the rest didn't think about social change and the influence of law but carefully examined their little specialist areas like Tort or Contract without any real examination of how society changes affected the law.

Thursday, 20 May 2010

Article | First Things

Article | First Things: "Astrue"
Michael Astrue, head of the United States Social Security Administration, has been outed as the poet AM Juster. The author of the article seems surprised as if this were incompatible with life as a public service mandarin. I was differently moved. Where are the poets in our civil service in New Zealand? We had one who was distracted by a flash of cleavage, but we have no record of whether this moved him to verse, or moved him at all for that matter. The Dominion Post (and this can only happen in Wellington) runs little potted biographies of the senior civil servants, some of whom do have unusual hobbies. But we have no poets, which may explain the unending tedium of most of what is produced from official circles. Perhaps we could have a sonnet about liquor from Sir Geoffrey Palmer, a paen to wine perhaps, or a ballad from the Chief of General Staff about the glories of Afghanistan.

Tuesday, 18 May 2010

Judicial Decisions of Public Interest — Courts of New Zealand

Judicial Decisions of Public Interest — Courts of New Zealand
This site is always worth checking, if for no other reason than to see what the courts managers think are matters of public interest. To day 2 decisions are attracting some attention. The first is R v Gwaze, which sets new ground in New Zealand by setting aside a not guilty verdict from a jury trial, and opening a brave new world where the Crown can appeal a jury verdict (albeit on very restricted grounds). the second is the next skirmish in the Vince Siemer saga, as to what should happen to his contempt sentence imposed for failing to take down the web sites criticising Mr Stiassney and his firm. The irony about the Siemer decision is that he tried to have the Chief Justice recused from this case but in her (minority) decision she would have held for him.

Monday, 17 May 2010

New Conditions of Probation | Miller-McCune Online

New Conditions of Probation | Miller-McCune Online
I stumbled across this article, which appears to show that Texas is not all hang-em high in their approach to dealing with criminals. What appealed to me about Ms Nagy's new system was that it was evidence based. At last-someone who applies a logical and systematic approach to social work! Between the recent legal aid report (the Dame Margaret Bazley Report) and the law Commission, we have a dire need for reform based on research and properly analysed evidence. I have been pretty skeptical about much work done by probation officers in New Zealand, based on probation reports which ranged from the superficial to the unrealisitic. The best are thoughtful and helpful, but too many rely on templates which result in a mechanical summary based on a manual. I intend sending a copy of this article to Corrections Minister Judith Collins.

Saturday, 15 May 2010

Children’s Books - Novels About Teens in Prison - NYTimes.com

Children’s Books - Novels About Teens in Prison - NYTimes.com
For all those who are keen on sending teenagers to jail, (take note, Sensible Sentencers) these new novels tell the real story. It will not be any different in New Zealand jails either. Teenagers will always push the limits and as adults we need to fairly and sometimes firmly establish the boundaries. We cannot solve all the tragedies-it is just part of life that sometimes the children hurt themselves and others. We cannot be too judgmental, as after all we survived those risky rears. But if jail is the answer, we are asking the wrong questions.

Wednesday, 12 May 2010

US judge questions 'three strikes' policy - National - NZ Herald News

US judge questions 'three strikes' policy - National - NZ Herald News
This is from the NZ Herald-the article points out that the judge does say that the proposed three strikes model for New Zealand does have more judicial discretion and is not as hard line as California. Its worth quoting from the article where he says
"People commit crimes for various reasons, some of it has to do with being under the influence of alcohol and/or drugs, some of it has to do with the availability of weapons and they're upset. Or they may think they're going to commit a crime like robbery and then the victim isn't as willing as they think and then things become more aggravating and someone gets hurt.

"I don't think the death penalty is a deterrent. I think that to argue that having certain kinds of laws or certain kinds of penalties will automatically cause people to comply doesn't work, based on my experience."

He said a blunt analysis could show crime was reduced by such schemes because locking up criminals meant they were not on the streets. "But at what costs? My concern always is that sometimes it's looked at as a simple solution and we no longer have to make the effort to rehabilitate - we just lock people up."

Once again this demonstrates the lack of real evidence behind many law reform suggestions. I hope Parliament does work harder on this issue-it has already fallen foul on Bill of Rights criteria.

Monday, 10 May 2010

California man gets eight years for stealing cheese | World news | guardian.co.uk

California man gets eight years for stealing cheese | World news | guardian.co.uk
This article from the Guardian illustrates why we should be wary of the inflexibility imposed by three strikes legislation. I t also shows that Texas is no better than anywhere (and possibly worse) in dealing with the mentally ill as criminals. I am inclined to think that the prices imposed by the poverty stricken dairy farmers for cheese in New Zealand might justify jail for cheese stealing too.

Friday, 7 May 2010

Office of the Judicial Conduct Commission

Office of the Judicial Conduct Commission
On this site can be found the newsmaking report from the Office of the Judicial Conduct Commissioner, and for those with a short attention span, the media statement. Does the need to issue a media statement say something about the perception of media intelligence and ability to understand hard stuff?
What interested me about the report was the oblique criticism of retired Justice Sir Edmund Thomas. In a surprising complaint Sir Edmund relied on second and third hand discussions as part of his now well known 18 page complaint to the Commissioner. I was taught that the best evidence is the original statement and I expect that the learned judge has many times decided issues on exclusion of hearsay evidence. This lack of evidential rigor cannot help in reaching an impartial result.

Thursday, 6 May 2010

Judges

This is just a quick post about Justice Priestley following the High Court appeal in Mckinnon v New Zealand Police HC Rot Cri-2010-463-000001 30 April 2010. The decision is unremarkable except for the way in which with some care and compassion, Justice Priestley dismissed the appeal. It would be easy to write a mechanical decision simply dismissing the appeal on the merits. However he clearly approached this matter giving some recognition and respect to the boys father, who helped his son on the appeal, and with a sympathetic and understanding analysis of what happened. We are quick to criticise judges who we consider have not dealt with matters as we want. We seldom recognise those who illustrate the best qualities of humanity but with legally consistent and fair results. In this judgement Justice Priestley should be commended.

I have added to this a  decision of the Court of appeal decision in  Garnett v R CA CA187/2009 7 May 2010 where he was part of the panel. His humane approach was fortunate indeed for Ms Garnett, who was spared jail to instead substitute home detention.

Wednesday, 5 May 2010

Law Commission flags privacy changes - national | Stuff.co.nz

Law Commission flags privacy changes - national | Stuff.co.nz
I will not try to earn the chocolate fish offered by Sir Geoffrey Palmer at his speech today. The meaning of privacy is too subtle and personal to be pinned down at law-and yet we have tried to do so. It is no wonder that some Government agencies get this wrong and why we sometimes read of ridiculous decisions made in the face of those misinterpretations. The Act does not come close to dealing with new concepts like Facebook where some people choose to hang out their personal lives in public. Unlike other projects this is properly the subject of the Law Commission. In many ways the whole thrust of the Act could be encapsulated in the idea that you should have a choice how much your personal information is available, and what to do when someone breaches your privacy boundaries. A simple concept like that could save some tonnes of paper but may be too obvious.

Wednesday, 28 April 2010

UNITED STATES v. STEVENS

Both readers of my blog will be relieved that this post is about something other than sale of liquor. A very recent United States Supreme Court decision on their First Amendment (freedom of speech) in relation to the freedom to publish or distribute dog fighting DVDs and videos is worth noting. The court said, which summarises what the case was about:-

"The Court strikes down in its entirety a valuable statute, 18 U. S. C. §48, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of“crush videos,” a form of depraved entertainment that has no social value. The Court’s approach, which has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production, is unwarranted. Respondent was convicted under §48 for selling videos depicting dogfights. On appeal, he argued, among other things, that §48 is unconstitutional as applied to the facts of this case, and he highlighted features
of those videos that might distinguish them from otherdogfight videos brought to our attention."

The US Supreme Court in the majority decision (8-1) was largely concerned that the statute under which Mr Stevens was prosecuted was "overbroad" in its reach, and was therefore unconstitutional. They were aware of the unsavory nature of the relevant images and of the other images proscribed under the statute-something called crush videos, which I am not going to describe as it would sicken you). They said

"Our construction of §48 decides the constitutional ques-tion; the Government makes no effort to defend the consti-tutionality of §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particu-lar depictions are intrinsically related to criminal conductor are analogous to obscenity (if not themselves obscene),and that the ban on such speech is narrowly tailored toreinforce restrictions on the underlying conduct, preventadditional crime arising from the depictions, or safeguardpublic mores. But the Government nowhere attempts toextend these arguments to depictions of any other activities—depictions that are presumptively protected by the First Amendment but that remain subject to the criminal sanctions of §48. Nor does the Government seriously contest that thepresumptively impermissible applications of §48 (properly construed) far outnumber any permissible ones. However “growing” and “lucrative” the markets for crush videos anddogfighting depictions might be, see Brief for United States 43, 46 (internal quotation marks omitted), they aredwarfed by the market for other depictions, such as hunt-ing magazines and videos, that we have determined to bewithin the scope of §48. See supra, at 13–14. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, andtherefore invalid under the First Amendment."

The dissent is more interesting as they often are. Justice Alito would have upheld the conviction. He said in relation to the overbroad issue that

"In sum, we have a duty to interpret §48 so as to avoid serious constitutional concerns, and §48 may reasonably be construed not to reach almost all, if not all, of the depictions that the Court finds constitutionally protected. Thus, §48 does not appear to have a large number of un-constitutional applications. Invalidation for overbreadth is appropriate only if the challenged statute suffers from substantial overbreadth—judged not just in absolute terms, but in relation to the statute’s “plainly legitimate sweep.” "

He compared the contested depictions with child pornography and distinguished hunting videos and depictions of tail docking and other accepted animal treatment. He went on to say:-

"The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct,even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct. The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos. In addition, as noted above, Congress was presented with compelling evidence that the only way of preventing these crimes was to target the sale of the videos. Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue."

He then makes a value judgment which I find unusual where he says that:-

"It must be acknowledged that §48 differs from a child pornography law in an important respect: preventing theabuse of children is certainly much more important than preventing the torture of the animals used in crush videos. It was largely for this reason that the Court of Appeals concluded that Ferber did not support the constitutionalityof §48. 533 F. 3d, at 228 (“Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm”). But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos."

Is this in the same category as those questions like, was Hitler worse than Stalin? Philosophers such as Professor Peter Singer may not agree with a ranking of such vileness, and I am not sure that they need to be ranked at all.



Liquor law reforms loom - politics - national | Stuff.co.nz

Liquor law reforms loom - politics - national | Stuff.co.nz
And now we get some picture of how the Law commission Report will be implemented. Some of the ideas are frankly off the wall. The $250 "civil debt" fee for taking home drunks indicates how little the proposers know about civil debt collection. Debt collection in the District Court, perhaps a far better target for the Law Commission, is caught in a mire of Victorian law of complex and bureaucratic silliness. The concept of reforming this area is obviously not "sexy" enough for the Commission or the Rules Committee. Despite the new District Court Rules introduced last year, the debt collection end was not reformed. In fact, the new procedure would make it completely uneconomic to collect the "civil debt" proposed for taking home a drunk. Lets examine what would happen. The person is found in Courtney Place, where Sir Geoffrey Palmer was shocked by the hordes of drunken teenagers. The Police make a decision to take the drunk person home and hand them a bill for $250. The person says "but I wasn't drunk, and didn't want to be taken home, but the Police said they would arrest me if I didn't cooperate." And declines to pay the bill. The Police then seek to enforce the bill and issue a notice of claim in the District Court. The Disputes Tribunal will not have jurisdiction because the Police say this is a debt collection outside of that tribunal. Then the whole tedious process of filing a notice of response and providing the information capsule will commence. We have not even started on enforcement which is a further pain to go through. This costs will greatly exceed any benefit of getting the $250.

Why not an infringement like a traffic ticket? There is a well established system for enforcing infringements which more or less works. I just shake my head with dismay when I see silliness like this "civil debt" idea. It is all part of the theory that passing laws makes people behave better.

As I read more of the Report I will, I am sure, see some sense. It is not looking too good so far.

Tuesday, 27 April 2010

Government rejects liquor tax hike | Stuff.co.nz

Government rejects liquor tax hike | Stuff.co.nz
And the backdown commences. The Nordmeyer Black Budget is clearly entrenched in political memory.

Law Commission - Projects

Law Commission - Projects
This is the page where the reports on Sale of Alcohol can be downloaded. My thoughts are reserved until I have read this behemoth report. I detect some concerns already about evidence, and remain convinced that well meaning and well researched as this may be, why is a Law Reform body writing about social policy? Do they see a gap in the government decision making? I thought we had enough consultants working for the diverse wings such as MSD and Health. More to follow.

The Law Commission and Liquor

I have previously commented on the Law Commission and the report on sale of liquor. Apparently the long awaited report is due any day now and will make sweeping recommendations about the great wave of liquor which is washing over the country, destroying all in its way. Or so many of the submitters will be saying. Apart from my serious reservations about jurisdiction, that a law reform organisation is writing about social policy, well outside of its purpose and function, I am wondering how much real empirical evidence will be provided to back up the statements. After the Legal Aid Review which attacked Manukau legal aid lawyers with no real evidence, I expect better from an organisation which recently completed a review of the law of evidence. I am confident that I will be disappointed. I will acknowledge this here if I am wrong but the leaks to date give me some fear that I am right.

Friday, 23 April 2010

Tax and Trustees

The recent decision in the case of Newmarket Trustees Limited v The Commissioner of Inland Revenue 14 April 2010 Associate Judge Faire Auckland High Court CIV-2009 -404-8108 is a timely warning of the difficulties which can be faced by a corporate trustee which administers family trusts. Newmarket Trustees Limited is a bare corporate trustee of the clients of a firm of corporate lawyers in Auckland. The company was a trustee of a family trust for one of the clients. Their client was responsible for preparing his own tax returns, but of course the corporate trustee assumed liabilities on behalf of the trust including tax. The client defaulted in his tax obligations, and the Commissioner served a statutory demand on the corporate trustee. The corporate trustee made an application to set aside the statutory demand, and this decision explains why the application was rejected. Although the deed establishing the trust contained a clause seeking indemnity, counsel for the Commissioner cited well-established principles of trustee law which are worth setting out in full taken from Foundation Custodians Ltd v Morton HC Auckland CIV-2009-404-3112, 2 November 2009 at [24].

A trustee is personally liable for all debts incurred in the conduct of a trust, and the personal assets of the trustee are available to meet the liabilities of the trust.

b) A trustee will normally have indemnity in the first instance from the assets of the trust in respect of liability in a trust transaction: Trustee Act 1956, s 38.

c) Trustees may avoid personal liability for the debts of the trust under a contract with a third party if their liability is expressly limited to the assets of the trust and their personal liability is expressly excluded by the terms of the contract. The need for an express provision in the contract arises because there is a presumption in favour of personal liability: NZHB Holdings Ltd v Bartells at [41] per Baragwanath J.

d) Whether the personal liability of a trustee has been excluded will depend on the language of the particular contract. In NZHB Holdings the following language, quoted at [10] and [42], was sufficient to exclude liability for an independent trustee but not for anyone else:

Persons, except independent trustees, who sign this document shall at all times remain personally liable for all obligations of the persons on whose behalf they have signed. An independent trustee is a person who is not a settler of the trust or has no rights to an interest in or assets of the trust except as a trustee of the trust.

The problem of course for the corporate trustee, was that they were the trustee for many other trusts, including other family trusts which owned property, shares and other interests. The judge was critical of a lack of evidence of the client's affairs and of any enquiry as to whether the clients trust had any money. The potential immense inconvenience was stressed by counsel. But, the application was refused because of the above principles which are well established law. The judge did allow a further period of time for the corporate trustee to negotiate with the Commissioner. Reading between the lines, one senses a frustration by the Commissioner as to a lack of information provided. Obviously liquidation of the corporate trustee would provide nothing for the Commissioner, and cause enormous inconvenience for the corporate law firm. But it may make them actively pursue their client, which may have been the object of the Commissioner. The decision, from the senior associate judge, must carry considerable weight but cause a frisson of fear among professional trustees. They should be taking a more active involvement in their clients affairs, and ensure that the Commissioner is kept informed.

Tuesday, 20 April 2010

Weird Cases: mobile contempt - Times Online

Weird Cases: mobile contempt - Times Online
The cell phone in court-still very common and mostly ignored. One went off when I was in the Maori Land Court today, but apart from a judicial eyebrow being slightly raised, nothing else happened. These days you can put them on vibrate, which depending on where you put the phone can add a frisson of excitement to your day.

Saturday, 17 April 2010

New Interest in Growing Edible Mushrooms at Home - NYTimes.com

New Interest in Growing Edible Mushrooms at Home - NYTimes.com
It is Saturday and as both readers of my blog may be aware, I get the New York Times Book sections on a Saturday morning, which provides an opportunity to deviate from the law, although the law itself is full of interesting deviation. But mushrooms are a pleasant way perhaps to break from analysis of judicial behavior. Which leads to the point of the article which is about the popularity of home grown mushroom and kits for growing in that most urban place, New York. No doubt this will spread to New Zealand although we are conservative in our enjoyment of the different varieties. I cannot go past the classics like a mushroom omelette, or mushroom soup, but the truffle! There is an olfactory piece of poetry of odour which alas, is not often found in the family shopping trolley. The Emperor Claudius was said to have died after eating poisoned mushrooms, but I rather think a jealous wife may have been the culprit and the mushrooms were framed.

Friday, 16 April 2010

Nawal El Saadawi: Egypt's radical feminist | Life and style | The Guardian

Nawal El Saadawi: Egypt's radical feminist |Life and style |The Guardian
A change of pace-this women is an inspiration. I grew up with strong women and regard this as an immense support for me. In a society that seeks to suppress women she is a brave and wonderful model. I hope my daughter grows up with the courage and intellectual ferocity of this woman, and that my sons respect her for this.

Barratry

What is barratry? The Supreme Court is only trying to help educate the masses in the recent decision of Tasman Orient Line CV v  New Zealand China Clays Limited And Others SC 39/2009
[16 April 2010]. This wonderful word, for those without the benefit of a legal education is barratry, which is, in general terms, conduct of the master or crew of a vessel intended to prejudice the owners of the vessel or its cargo. Wikipedia, that great legal source, says that it is in admiralty law, an act of gross misconduct committed by a master or crew of a vessel which damages the vessel or its cargo. These activities may include desertion, illegal scuttling, theft of the ship or cargo, and/or committing any actions which may not be in the shipowner's best interests by the master or crew. It has another legal meaning of the act or practice of bringing repeated legal actions solely to harass. I can readily think of some well known litigants who come under this term, apparently now obscure in the Commonwealth jurisdictions.
The case itself is worth reading. Justice Wilson has written a decision of commonsense application, and agreeing with Justice Fogarty who was in a minority in the Court of Appeal. Perhaps the clear and commercial approach are the reasons Justice Wilson was appointed, which are justified in this case, where the academic approach in the Court of Appeal perhaps had lost contact with the reality of shipping and insurance law.

Monday, 12 April 2010

Judge accused of breaching ethics | Stuff.co.nz

Judge accused of breaching ethics | Stuff.co.nz
The heat rises. But I do not believe that he will have to resign, nor will he do so voluntarily. None of the journalists have bothered to find out that he can only be removed by Parliament. I do not believe this has ever been done in New Zealand and seldom in England. Judges are appointed de bene gesserint, or on good behavior. What constitutes bad behavior has not ever really been discussed. It is easy to think of actions such as being convicted of an indictable offence, or an outrageous venting of racist or sexist comments, which would qualify as bad behaviour. There is one case on the removal of the Chief Justice of Gibraltar, where a succession of petty events, coupled with some poor judgment and a strong willed and independent wife led to the setting up of a Judicial Commission to remove the judge. While poor judgement may be thought to be a hint the decision was 4-3, so the Privy Council was not at all firm on the issue. This can be read in the Privy Council report of Hearing on the Report of the Chief Justice of Gibraltar (Gibraltar) [2009] UKPC 43 (12 November 2009)

Saturday, 10 April 2010

A matter of judgment - Crime - NZ Herald News

A matter of judgment - Crime - NZ Herald News
Well-this is a storm brewing. Normally issues like this get carefully swept under the carpet in New Zealand. The curious feature is that no one actually says Justice Wilson is anything but a competent Supreme Court Judge. It is all about the apparent bias test in the Auckland Casino case and others. It isn't that he has done anything wrong in his decision making-just that it is said that to the general public he may have the appearance of bias. Perhaps the better test is that a judge must be like Caesar's wife. In reality the number of senior lawyers eligible to be appointed is so small that there must be few who do not know each other prior to appointment. How many lend each other money? There is certainly support for each other, and the collegial nature of lawyers is such that this sort of support is certainly not unusual. Do we risk losing a perfectly adequate judge for the academic principles? Watch this spot.

Thursday, 8 April 2010

Whanau Ora: Turia to head welfare shake-up - National - NZ Herald News

Whanau Ora: Turia to head welfare shake-up - National - NZ Herald News
We need more details about this programme, but I cautiously support it. It is all about helping people in a culturally appropriate way, rather than assuming that the models we use in the MSD delivery of social services are still useful. But we still need to address some bigger issues, such as the growing divide in haves and have-nots. I am also unsure whether passing laws makes people behave better, and we need to re think the Sensible Sentencing approach to crime and punishment which the government seems to be adopting.

Wednesday, 7 April 2010

Government announces legal aid reforms | Stuff.co.nz

Government announces legal aid reforms | Stuff.co.nz
Well this was as surprising as the news that Ricky Martin is gay.
But legal aid lawyers will not be singing Living la Vida Loca at the news. The public defender offices will be expanded to Hamilton and Wellington, and legal aid lawyers will need to re apply every 3 years. I see an opportunity for Legal Educators to put in a plug for compulsory continuing legal education. This may just move some legal aid lawyers to the public sector instead of private practice. The announcement also sees further growth in Tribunals with the Legal Aid Tribunal to replace the Legal Aid Review Panel. We have now created a whole new level of Tribunals below the District Court, elevating its status and allowing for the potential to act more often as an appeal court, not something we think of as happening in the District Court.

Easter

There is a mixed bag over Easter. The usual christian crucifixions continued in the Philipines and also in a shopping mall in Australia. Many died in road accidents, including some young people in the usual mixtures of drink and speed. The Catholic Church has continued to staunchly deny it has done anything wrong in protecting clergy with a penchant for under age sex.  It is all a bit grim. Even the Court of Appeal is telling us to put sex offenders in jail for longer times.
I think Tom Scott got it right in the Dominion cartoon today
http://www.stuff.co.nz/dominion-post/opinion/tom-scott-cartoons/1251886/Tom-Scott

Friday, 2 April 2010

Le Fooding, the French challenge to haute cuisine. : The New Yorker

Le Fooding, the French challenge to haute cuisine. : The New Yorker
A change from the law-the next movement in food-you saw it here first-or perhaps the New Yorker should actually do so.
Inspired by a perfectly cooked steak, mushrooms finished with a balsamic vinegar and some Chateau Thames Embankment-(a Rumpole reference)

British Chiropractic Association v Singh [2010] EWCA Civ 350 (01 April 2010)

British Chiropractic Association v Singh [2010] EWCA Civ 350 (01 April 2010)
This is the actual judgment of the Court of Appeal. Some items of interest and the result. Its not a long judgment, and the litigation is not over although this may end it, depending on whether the BCAP go to the Supreme Court. I think they would be foolish, but then who knows? They may feel that the survival of chiropractic depends on this. I am with Dr Singh's view-it is a dubious  branch of treatment. Now please have a go at the homeopaths!

    The litigation
  1. If, like many trade and professional associations, the BCA was not incorporated but consisted simply of the totality of its members, neither individually nor collectively would they have had standing to sue. Some corporations – municipal ones, for example - also lack standing to sue in defamation. The BCA is not subject to either of these disadvantages. If the present claim is well founded in law, the BCA is entitled to pursue it. Moreover, as the law presently stands, it was entitled, for its own reasons, to reject the opportunity fairly offered to it by the Guardian to take issue with and refute the criticisms expressed by Dr Singh and to demonstrate the fallacy of his opinions. Instead the BCA sued Dr Singh, but not the Guardian, for libel.
  2. It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation.
  3. By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics. Again, if that is where the current law of defamation takes us, we must apply it.

    1. However this may be, we consider that the judge erred in his approach to the need for justification by treating the statement that there was not a jot of evidence to support the BCA's claims as an assertion of fact. It was in our judgment a statement of opinion, and one backed by reasons.
    2. We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):
    3. "[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."
    4. In an area of law concerned with sometimes conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression, it is somewhat alarming to read in the standard textbook on the Law of Libel and Slander (Gatley, 11th edition) in relation to the defence of fair comment, which is said to be a "bulwark of free speech", that "…the law here is dogged by misleading terminology… 'Comment' or 'honest comment' or 'honest opinion' would be a better name, but the traditional terminology is so well established in England that it is adhered to here".
    5. We question why this should be so. The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities.
    6. This appeal must be allowed.

Thursday, 1 April 2010

Science writer wins 'fair comment' appeal - Science, News - The Independent

Science writer wins 'fair comment' appeal -
Science, News - The Independent
Some sanity now prevails in the English Court of Appeal. This libel case concerned some common sense about chiropractic written by Simon Singh, perhaps best known for his book about Fermat's Last Theorem. He said that he didn't believe that chiropractic had any scientific basis but also described it as "bunkum" which the court at the lower level said could carry a defamatory meaning, or as the Independent said "The BCA alleged that Singh, in effect, had accused its leaders of knowingly supporting bogus treatments."

FT.com / Books / Essays - The Dreyfus Affair

FT.com / Books / Essays - The Dreyfus Affair
Two new books about the Dreyfus Trial-which has always made me dubious about the Civil Code criminal systems, where the trials seem to be endless and altogether too close to the executive wing of government.

Geoff Sharp – Commercial Mediator and Barrister from New Zealand

Geoff Sharp – Commercial Mediator and Barrister from New Zealand
A good site-I am quite impressed and it is good to see a lawyer/mediator having such an effective site. Too may of us are not adept with web matters but if we do not learn, we will not be able to keep an internet presence, which is now a basic essential for practice.

Tuesday, 30 March 2010

Big City - A Lawyer Rejoins a Cause That First Gripped Her 70 Years Ago - NYTimes.com

Big City - A Lawyer Rejoins a Cause That First Gripped Her 70 Years Ago - NYTimes.com
Well if I keep going as long as this I may have another period of practice as long as I have had to date. I think it is the cause rather than the money which keeps you going.

Duty of care owed to beneficial owner - Times Online

Duty of care owed to beneficial owner - Times Online
This will be of interest to the many family trusts in New Zealand who own leaky homes. I will do a longer note later but read the article where the English Court of Appeal has recently affirmed that the

" the defendant, in breach of duty damaged the property, he would be liable not merely for the physical loss of that property but also for the foreseeable consequences of that loss, such as the extra expenditure to which the beneficial owner was put or the loss of profit which he incurred."

Saturday, 27 March 2010

Woman who lied on her CV to get an NHS job is jailed for six months - Times Online

Woman who lied on her CV to get an NHS job is jailed for six months - Times Online
British Courts must be tougher than New Zealand. Mary Ann Thompson got 100 hours community work and a $10,000 fine for lying about her PhD. But then Judge Bruce Davidson is a pretty humane sort of judge.

Book Review - Texas Tough - The Rise of America’s Prison Empire - By Robert Perkinson - Review - NYTimes.com

Book Review - Texas Tough - The Rise of America’s Prison Empire - By Robert Perkinson - Review - NYTimes.com
Every politician advocating tougher prison sentences should read this indictment of the Texas prison system, as the extreme end of that sort of policy. And, they have just saved one potentially innocent prisoner from death row, thanks to the Innocence project. Perhaps though a death sentence is a better option than life in the Texas Prison System

Thursday, 25 March 2010

Commerce Commission Website - Real estate agent’s appeal upheld because of new Act

Commerce Commission Website - Real estate agent’s appeal upheld because of new Act
I am not sure I agree with the lenient approach taken by the judge. It is a change for me to support a tougher approach, but if on one hand the court allowed the appeal against the District Court acquittal, but then emasculated the result, it makes nonsense of the intention of Parliament to toughen up real estate agents conduct rules. I think Justice Harrison is doing so for the best of motives-he always has a humane approach, which I applaud. Perhaps this agent was unlucky in being the first and overlapping the change in law. But, he did engage in misleading and deceptive conduct. Should he still be an agent? I think not.

Thursday, 18 March 2010

'Greater good' defence won't work for others - expert - National - NZ Herald News

'Greater good' defence won't work for others - expert - National - NZ Herald News
I have some discomfort with this decision. Various observers have commented that the public dont like spy stations, but somehow the good intentions of the protesters have translated into costly damage-which the taxpayer will pay to repair. The principle appears to be proposed that if you have good intentions or are are "spiritual" or "holy", then this gives you the moral authority to damage something which you dont like. In reality this is no different from suicide bombers or other terrorists. The causal connection between the Waihopi spy station and the Iraq and Afghanistan wars must be thin.

Wednesday, 17 March 2010

Auckland and New Zealand Property - Bob Dey Publishing

Auckland and New Zealand Property - Bob Dey Publishing
Bob Dey's newsletter is a valuable source of commercial property intelligence. In this week he refers to the settlement of the Albany Centre dispute, which is noted for the commercial common sense in the settlement, but also noting that the flirtation with creating leasehold interests appears to be over. The Beaumont Centre in central Auckland is also moving away from leasehold interests, largely because in both cases there is no real commercial value. The real purpose was to clip the ticket on funds moving around-and not to add value to the property or the transactions.

Tuesday, 16 March 2010

The Decider | The New Republic

The Decider | The New Republic
We are very restrained in New Zealand about criticising judges. In the United States they pull no punches. This article about Justice Anthony Kennedy damns him with fairly faint praise.

The Al Qaeda Seven and the Case for Unpopular Clients - WSJ.com

The Al Qaeda Seven and the Case for Unpopular Clients - WSJ.com
This says it all. Why do we take on the hard cases? Read this article.

Jonathan Moses

On 18th July last year I commented on Jonathan Moses, with the hope that he was on someones list. It seems he was, as his recent appointment as a District Court Judge for Manukau was made.
It may not be the easiest posting-even parking is notorious there, but perhaps it typifies the man that he did not choose a softer option. The system seems to work!

Wednesday, 10 February 2010

Lewis v Howick College Board Of Trustees Employment Court 19 January 2010


This is just a quick note about this recent decision. It is not about the merits or the law, but praise for the sensitivity with which Chief Judge Colgan dealt with a difficult case, where Mr Lewis was unwell and did not handle his case very well at first instance. In particular. He said “Whether as a consequence of indemnifiers’ caution or for other reasons, both cases illustrate the potential for dealings between parties to teaching employment relationships to become prematurely and unduly legalistic. In this case, although perhaps for understandable reasons because of what was perceived to have been Mr Lewis’s intimidatory and manipulative dealings with his employer’s representatives, the Board’s lawyer assumed personally and almost from the outset, the conduct of the process that led to Mr Lewis’s dismissal. Whilst, for reasons set out in this judgment, that did not ensure compliance by the Board of its obligations towards its employee, my concern is that it deprived those with expertise in education from even having a substantial advisory involvement.” And further “The other feature on which I wish to comment generally concerns how schools may address circumstances such as Mr Lewis’s to avoid the unfortunate consequences for all illustrated in this case. Although I am not aware whether such arrangements were in place in this case, its unfortunate circumstances may illustrate a need for teachers, principals and boards of trustees, with the assistance of their professional organisations, to consider putting in place collegial support systems for increasingly isolated teachers in circumstances such as Mr Lewis’s. Although I imagine that the professional teacher unions do so for their members, not all teachers have access to the member welfare services provided by the PPTA or the NZEI. It would probably not be unusual if teachers in the circumstances of Mr Lewis resigned from such organisations in any event so that the desirability of independent assistance is apparent. Although there are, no doubt, a number of models that might be considered and adapted, the scheme providing for welfare officers in the Police and the Friends’ Panel amongst lawyers are two with which this Court is familiar. I commend consideration of such a scheme by the New Zealand School Trustees’ Association, the teacher unions and the relevant school principals’ organisations.”

In other words, lawyers can get in the way of resolving disputes which should be solved by non legal tools.

Friday, 15 January 2010

Insolvency Schemes and Alan Duff

Creditors Schemes are not used as much as they should. A careful and structured realisation of assets will always produce more for creditors than the well meaning and helpful, but hopelessly underfunded Official Assignee. I have written an update for schemes which is regrettably not online but is to be found in the New Zealand Law Journal “Insolvency Schemes under the New Insolvency Act” at 2009 [NZLJ] 47. This post is not however a link to the Law Journal, excellent publication that it is, but rather a comment on the recent attacks on Alan Duff, the New Zealand writer, who in making the conclusion that he could not make a living on publishing novels in New Zealand, decided to enter into property development. Alas, the ability to craft prose and the ability to craft money are not synonymous, and his venture failed. He then undertook a scheme of arrangement optimistically basing this on the sale of future novels he intended to write and publish. Not all his creditors agreed, and a finance company represented by John Weymouth, and Auckland lawyer, took exception to his proposal. Notwithstanding this, the High Court eventually approved the scheme and Alan Duff set off energetically to write his novels. He has managed to produce 2 so far with another on the way. While his productivity is to be commended, the novels have not been well received, and he concedes that too much haste may be an issue. What then stirred up trouble was that he joined a golf club. This enraged the finance company (or John Weymouth, I am unsure which), and they now want to cancel the scheme. The failure of the books to sell at bestselling speed may also mean the creditors will not receive dividends. Perhaps the story of the scheme would have made a better story than the novels-it certainly has drama, a courtroom battle and vivid characters!