Wednesday, 28 April 2010


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 |

Liquor law reforms loom - politics - national |
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 |

Government rejects liquor tax hike |
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 -

New Interest in Growing Edible Mushrooms at Home -
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.


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 |

Judge accused of breaching ethics |
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 |

Government announces legal aid reforms |
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.


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

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." / Books / Essays - The Dreyfus Affair / 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.