Judicial decision-making: what do (trial) judges do? [ADLS seminar, 3 March 2020]

Introduction

This paper determinedly is addressed to an audience of working legal professionals. Addressing ‘what judges do’ to a broader audience would include championing the larger judicial role, as a constitutionally important and independent branch of government, administering and maintaining the rule of law as bedrock for the individual rights and freedoms of this democratic state’s citizens.[1] Without subtraction from that context, this paper focuses on the core of the judicial function: judicial decision-making at (predominantly, civil) trial.
Conventionally, what trial judges do is find the facts and state the law, accordingly to determine (and, if required, to remedy) disputed rights. So said, so obvious.
But that mechanical description does not capture the more textured exercise of judicial decision-making, which engages “pragmatism, discretion and choice” in each of those steps.[2] Contended rights may not comprehensively be expressed; unless agreed, facts may not spring fully formed from evidence; the applicable law may not clearly be established; and their respective articulations requires considerable policy and value judgement (with the intermediate ‘e’).
Of further relevance is the judgment’s purpose: to decide the case and to inform what was to be decided and the reasons for the decision; not only to permit scrutiny, but also to satisfy justice has been done and is seen to be done. Public accountability requires full disclosure of judicial reasoning, expressed through application of professional skill. There is tension between clarity of each expression and reason.
Critical to comprehension of judicial decision-making is understanding the judicial function. It is not a popularity or populist contest. It is to make decisions referable to an ascertained or ascertainable standard, to which policy or discretionary considerations are subservient, permitting definition for application in the present case (and, perhaps, subsequently).[3] Pure statements of discretion or policy is not the judicial function. Policy and discretion are informative, not determinative, of judicial decisions.
Counsel’s task is to persuade exercise of judicial decision-making in favour of the theory of their case. To be successful, it must isolate contended issues, necessary alleged facts, and argued legal principle for judicial reliance. It may pray in aid policy and discretionary considerations. This paper articulates the judicial decision-making process, to assist in that task.

The judge as definer of issues

Before disputes come to trial, the scope of the dispute is defined by the pleadings. Consequent required discovery and admissible evidence are confined accordingly. Allegations respectively in the claim and defence (or application and opposition) ‘merge’ in the judgment, which (subject to any appeal) finally determines and substitutes for those contentions.[4] Pleadings thus have material impact both on what is to be decided, and on what foundation.
Case management’s role is to ensure judgment can issue on conclusion of trial. Hence the initial item for consideration at a first case management conference is “[r]esolution and refinement of the issues, and as a consequence whether the pleadings require amendment”.[5] Although the item often casually is dismissed in parties’ case management memoranda, a judge nonetheless is to determine if the issues for determination are resolved or require to be refined.[6] Confronted by the parties’ often joint assertion no amendment is required, and any such determination may not be by the trial judge, judicial willing spirit may be overcome by weak flesh.[7] But the trial judge ultimately will be confronted by any shortfall in issue definition, and likely at a time too late for pleadings’ amendment without leave.
While the judge has own-initiative power to amend the pleadings as “necessary for determining the real controversy between the parties”,[8] s/he may be hesitant to do so without the parties’ agreement, and parties’ late amendment must “surmount the three formidable hurdles of showing that the amendment is in the interests of justice and will not significantly prejudice [opponents] or cause significant delay”.[9] The alternative is the particular aspect of the pleading will fail. It is not uncommon for the shortfall first to become evident in closing, when there may be no option but to abandon the issue.
Early attention to pleadings’ detail is highly desirable to ensure the issues for determination are complete. Mismatches or omissions more easily are identifiable by creation of a ‘merged’ or ‘blended’ pleadings document, containing side-by-side columns of each claim and defence published in landscape format, each row containing the respective allegation and response. I often create such an aid to assist in defining the issues in advance of trial, to outline oral judgment, or in preparation of reserved judgment; counsel should find it no less a useful tool, and appealing to judicial familiarity in earlier identifying any requirement for issues’ refinement.

The judge as finder of fact

Factfinding may seem a prosaic process. It is, after all, what is left in criminal cases to lay jurors. It is unintellectual and uncreative; it is despairingly particular. It is scarcely a legal skill: auditors, journalists, loss adjusters and medical practitioners, among other professionals, all are called on to recount what occurred in the past for their current purposes.
But the judge’s role differs. The judge must find the facts precisely because they are disputed between the parties, and bear materially on the case’s outcome. In doing so, s/he is subject to evidentiary and procedural constraints “providing for facts to be established by the application of logical rules”.[10] And the judge’s distanced determination of the facts has impact on the rights and obligations of at least the people between whom the facts actually occurred.
In finding the facts, the judge does not rely on any authority, even if of expert evidence. Instead, s/he is reliant on self-assessments of the credibility and reliability of witnesses. Little comfort can be drawn from the required degree of proof, whether on the balance of probabilities or beyond reasonable doubt. Within those margins, the judge is to determine the truth. It is not simply arbitration of a contest between ‘alternative facts’ asserted by the disputing parties.[11]

—common ground

Conveniently, the starting point for determination of facts is where there is no dispute. The pleadings indicate what allegations are admitted. (Hence the utility of the ‘merged’ pleading document.) Formally-agreed admissions of fact dispense with any need to prove those facts.[12] A well-constructed claim, formulated to obtain maximum admissions, will be effective in isolating those issues required for determination.

—contemporaneous documentary evidence

Beyond that, determination of disputed facts draws primarily on witnesses’ (usually, oral) evidence. Before turning to the veracity, credibility, and reliability of witnesses, there almost always will be contemporaneous documentary evidence. Business, personal and regulatory records, formal and informal correspondence, maps and plans, photographs and sound and video recordings all offer a framework of primary facts within which to locate witnesses’ accounts. The framework is chronological, because that is the order in which facts occur.
The common bundle – for the same reason, desirably to be compiled chronologically – is available to the judge before trial has commenced. If time permits, there is significant judicial temptation to leaf through its contents, to obtain more direct insight into the case’s factual underpinnings. But that has its risks, because – regardless of the compendious nature of the common bundle, as most are – only those documents referred to by counsel in opening, or produced by witnesses or by agreement, are evidence in the case.[13] Counsel should take much more advantage of the narrative opportunities provided by comprehensive opening, rather than leaving that task to some lead witness, who inevitably will stray beyond permissible limits.
Once evidence is complete, I will develop a chronology, predominantly from contemporaneous sources, to see if the disputed facts are supported more or less by those documents. (The more partial or incomplete counsel’s chronologies, the less useful they are.) Sometimes documents will be determinative on their own, even if divergent from parties’ agreement on facts. Where documents do not supply the whole answer, they provide an incontestable context for oral evidence, independent of the frailties of human recollection.

—oral evidence

Those frailties are considerable. Oral evidence, particularly in civil cases, is given in an unfamiliar environment of heavily-mediated witness statements, subjected to dispute by opposing counsel. Such tends to encourage detail-intensive witness narratives, often encroaching into advocacy. Witnesses’ commitment to their ‘story’, including interpretation or recreation of contemporaneous documents and events, diminishes attempts to assess their credibility, and therefore the reliability of their account. Witnesses’ emotional engagement with the comprehended rights of their case exacerbates the problem.[14]
A traditional starting point has been to assess – from the witness’ credit unrelated to the litigation, and demeanour in giving evidence in it – if s/he is telling the truth as s/he perceives it to be.[15]
I lack sufficient insight into the human condition to be able to tell if even the near- invariably untruthful nonetheless may be telling me the truth, or if their deportment before me may betray its falsity. Cross-examination as to credit rarely goes so far as to elicit the possibly justifiable circumstances as may have given rise to earlier untruths. I do not know how to deduct impact of the likely unfamiliar exercise of reading aloud words often written by others, with brief interstitial references to common bundle documents (themselves in unfamiliar presentation), and contested in pointed and partial cross-examination, all from the elevated isolation of the witness box, caught between their interrogator and the judge to whom their evidence is intended to be addressed. The frequent inutility of intended rehabilitative re‑examination illustrates that impact.
Hesitancy and prevarication in giving evidence are slender reeds on which to assess witness veracity. They imply a norm of assertive and direct responsiveness, which is not observably a hallmark of human communication (but may be thought a characteristic of the fraudulent), “to attach importance to deviations … when there is in truth no norm”.[16] Witnesses’ halting or diversionary responses tend to be obvious in the notes of evidence in any event, undermining any appellate deference to a trial judge’s reliance on demeanour in determining the facts. The importance of demeanour instead is in its communication of something not captured by the notes of evidence: a witness’ shrug accompanying their “yes” to counsel’s assertion, perhaps indicating their view of the suggestion’s immateriality; or a long pause preceding such agreement, possibly showing deliberative acceptance of the proposition. Judges are alive to off-transcript interactions, and tend to record any influence on their fact-finding.
Unrelated contentions as to a witness’ veracity are not of much assistance in fact-finding in the present case. There are other difficulties: recollection fades inconsistently, to maintain better only that which the witness holds to be important; and possibly in creative hindsight, especially when evidence is given as a comprehensive narrative of the dispute, rather than as what the witness saw, heard, or knew. Instead, the credibility of oral evidence falls to be assessed by reference to its external and internal, and objective, consistency.
Consistency first is to be considered against the contemporaneous documents and the chronology drawn from them. Consistency with agreed and admitted facts provides less foundation for assessing witness credibility; those concessions too frequently reflect comprehension of what may not be significantly material, or what must have occurred. That is why a judge may find facts at odds with parties’ concessions, and is not to be limited to choosing between their factual contentions.
But the contemporaneous record is difficult to gainsay. It always is possible a witness will have different comprehensions than are found on those primary facts, but s/he will remain credible if the evidence is at least consistent with the record itself (even if not with the conclusions – the secondary facts – to be drawn from it). Any honest factual dispute will arise either without comprehension of some relevant aspect of the record, or by taking different inference from that concluded by the judge. Internal consistency of witness evidence – both with the balance of accepted testimony, and with what s/he has written or said on other occasions – also is a clear pointer to credibility.
A third measure of witness veracity or credibility is consistency with logic and common sense. But that assessment is rife with traps. Lived experience is not necessarily objectively logical; common sense is hugely reliant on individual context. The impact of conscious and unconscious bias in judicial decision-making is notorious,[17] and acknowledged by judicial caution in bringing personal comprehensions to bear in evidentiary assessments. At least in coming to substantive determinations of fact, judicial ‘intuition’ is better avoided. But there comes a time when contended primary facts elicited from witness’ accounts of their observations or experiences stand alone with little or no corroboration. In those circumstances, judges can do no better than to be aware of biases prospectively affecting their assessment, and to pursue contextual rationality as a touchstone.

—weighing evidence

That a witness’ evidence truthfully reflects her perceptions only addresses veracity. Credibility and, especially, reliability depends on the weight to be given the evidence. This is not an exercise of judicial discretion, but of judicial judgement (again, with the intermediate ‘e’): “the most difficult and often the most exacting task which the civil trial judge has to undertake”.[18] To mistake judicial choice between competing accounts, or preference for one witness’ evidence to another’s, as discretionary is to dismiss the judge’s task as founded on hunch or intuition, rather than being as objective an assessment as may be achievable on the available information.
In attaching weight to evidence, a judge balances what s/he is told against factors including the source and provenance of the information, the circumstances in which the information arose, and how and when the information came to the witness’ attention. In particular, against contemporaneous documentation and other accepted evidence, what influences – others’ input, or wishful thinking, or partisanship – may have been brought to bear in articulating his recollection? It is an iterative process, applicable to separate items of evidence, to distil what primary evidence can be derived as reliable, ultimately to be combined into a consistent whole truth.

The judge as law maker

I have no intention of embarking on the philosophical debates around legitimacy of judges’ role as lawmakers. Those are, broadly, judges have no, covert, some, or unconstrained ability to make law.[19] The reality is we state the law as it is, rarely exclusively because what we think it should be: “for better or worse Judges do make law, and [we must] tackle the question how do they approach their task and how should they approach it”.[20]
Subject to our obligation to apply appellate authority binding on us, what the law ‘is’ is a matter for our judgement. We may be assisted in, but not be relieved of, that task by how coordinate judges have determined similar issues. We must decide if those decisions nonetheless are correct. Thus our first consideration is if there is binding authority, either directly or analogously on point.
Over thirty years ago, Lord Cooke assessed “in virtually every major field of law New Zealand law is radically, or at least very considerably, different from English law”, and urged we “work out our legal destiny”.[21] That destiny has New Zealand law increasingly spoken with a New Zealand accent. Our law is to be imbued also with tikanga. We now have a body of autochthonous appellate caselaw sufficient in depth and breadth not to warrant initial or determinative reference offshore. Contemporary English or United Kingdom law, whatever now may happen to it post-Brexit, presently is so influenced by European Union jurisprudence not to justify its wholesale adoption as an authoritative statement of our ‘common’ law. We should take note of our Australian and Canadian peers, whose senior court trial judgments almost exclusively, and observably, are made with reference only to domestic authority.
Although it ought not require to be said, an early consideration is if there is applicable legislation. New Zealand’s statute base is comprehensive, extending to over 1100 current public Acts (and much subsidiary legislation), supplanted or supplemented at the rate of 100 new statutes every year.[22] It is no coincidence The Capital Letter uses statutes’ titles as its primary taxonomy. The influence of statute law is so pervasive some 60 per cent of appeals in the Supreme Court’s first decade involved aspects of statutory interpretation.[23] That Court’s most-cited text is Burrows and Carter’s Statute Law in New Zealand.[24] The text’s authors consider one result of the modern style of drafting is more general provisions with more scope for argument as to what they cover.[25] Attention to applicable legislation not infrequently is overlooked by counsel. Yet judges are bound to recognise parliamentary supremacy.
Absent appellate authority or applicable statute, what constrains a judge then simply from stating what the position should be? Discipline is asserted by the requirement to give reasons for the decision. Those reasons are not to be quixotic, but objectively grounded in legal principle. Persuasive sources include comparable appellate or analogous coordinate decisions, which articulate a foundation for organisation of personal and business affairs on the basis of a particular understanding of the law.[26] Adoption or introduction of innovative structures may warrant consideration of how other jurisdictions have addressed similar issues.[27] In either case, departure should have to be justified.
Judge-made law generally should be stable and reliable – drawing on the diversity of its decision-makers, present and past – as foundations for its legitimacy. That is the essence of the rule of law.[28] But, beyond appellate and statutory confinements, the judicial function involves the exercise of choice: of earlier decisions; between conflicting judgments; of determinative facts; and in degrees of certainty.
When I started in (1980s) practice, it was a measure of research diligence to identify applicable unreported judgments. Judges at least had the advantage of knowing, or being able more easily to find out, how peers had addressed similar issues. Availability and volume of first instance decisions now mean the winnowing process is much more demanding, especially if counsel throw up every prospectively relevant decision. Doubtless transparency of the judicial process is much enhanced by that availability.[29] But efficiency (desired) of judicial decision-making means there is a limit to what can be reviewed and applied.
Similarly disciplinary is the scope of the judicial role. We cannot effectively legislate beyond the requirements of the particular case, and should not seek to choose between competing social policy considerations, both more appropriately to be determined by others as reflecting desirable community wishes. And there are determinations beyond judicial competence, requiring applications of technical expertise rather than legal decision-making.

The judge and judicial discretion

That brings me to the exercise of judicial discretion. There is a definitional issue: what is meant by ‘judicial discretion’? May a judge just do what s/he thinks is right – fair and just – in case management, fact-finding, law-making, or granting relief?
It is striking statutory reference to the discretion almost always is accompanied by a stipulation of what the judge must consider for its exercise. With express section-heading reference to “exercise of discretion when considering bail”, “the court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so”.[30] The Court’s discretion to refuse judicial review relief for some technical irregularity requires the Court first to find “no substantial wrong or miscarriage of justice has occurred”.[31] A court’s discretion to excuse or exclude subject persons from hearing of applications for exercise of the court’s PPRA jurisdiction is constrained by precursor findings as to the person’s mental capacity or emotional susceptibility or disruptive conduct.[32] There are myriad examples. And even the Court’s express ultimate discretion in determining applications for costs does not mean such decisions are unappealable.[33] Thus some principle must apply.
It should be clear from what I have explained in relation to fact-finding and law-making neither can be described accurately as including any aspect of judicial discretion. Judicial choice between competing factual contentions or legal principles is made by application of objective criteria. Case management and other interlocutory steps are conditioned by the High Court Rules’ objective “to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”,[34] and subsidiary specific criteria (even if only to repeat what is “just” or “in the interests of justice”). Procedural and substantive remedies also fundamentally are rule-defined: “the court must” is a familiar legislative phrase, especially in connection with the granting of relief or otherwise exercising its powers.
Doubtless there are many instances in which a judge is called upon to assess the balance between competing considerations. A straightforward example is the balance between open justice and confidentiality and privacy interests in court proceedings. But that choice also cannot sensibly be described as discretionary, when the weight of the respective considerations is established on evidence, and the judge’s choice is founded on the assessment of those facts in the particular circumstances. The result may differ if the question is, for example, to hold hearings closed to the public, or to permit subsequent public access to court documents. Similarly, applications for interim relief are determined based on if the plaintiff has a serious question for trial, and if the balance of convenience and overall interests of justice favour granting the injunction.[35] By ‘serious question’ is meant one not vexatious or frivolous, on which the plaintiff has a real prospect of succeeding at trial. Little argument on the point usually is justified. On the remaining (correlatively more significant) consideration(s), the question is if refusing the injunction would be harder on a plaintiff who was successful at trial, than would granting it be on a successful defendant.[36] This assessment is undertaken generally by reference to the adequacy of damages, preservation of the status quo, the uncompensable disadvantages to either party, and the relative strengths of their cases.[37] Judicial discretion only truly arises in the very final assessment, of what to do once those criteria have been determined. But those determinations will tend to set the limits for the exercise of the discretion.
So-called ‘discretionary remedies’ – specific performance, injunction, or restitution – also turn on finding breach of an underlying right, and the expectation of special or exceptional circumstances if the remedy is not to be granted.[38] On specific performance, for example, the court must be satisfied, first, there is a binding contract between the parties;[39] next, there must be consideration (as equity will not assist a volunteer);[40] then the plaintiff must demonstrate the defendant has failed to meet contractual obligations;[41] and, last, damages must be an inadequate remedy.[42] Establishing grounds for judicial review anticipates at least some relief will follow.[43] The expectation and anticipation is established by judge-made principle, precisely to avoid unconstrained reversion to judicial discretion on which litigants could have no certainty as to how any individual judge may respond.[44] Sentencing, once the quintessence of judicial discretion,[45] is now so bounded by legislative requirements and guideline judgments as to render the ultimate decision – while still the absolute responsibility of the sentencing judge – only truly ‘discretionary’ at the margins.
Rule of law considerations – of “certainty and predictability”; “certainty and … freedom from arbitrariness in … law” – militate against judicial discretion having any substantial position in judicial decision-making.[46] Although supportive of a distinct appellate threshold, so far as ‘wrong’ and ‘plainly wrong’ are diverse qualities,[47] judicial discretion’s compass is much – and may yet be more – diminished.[48]

The judge as articulator of judgments

Judgments serve a technical purpose. They are not works of literature, but an expression of legal professional skill, desirably exercised soon after hearing is concluded, to explain why and how the claim has been determined. Within the confines of available time and alternative demands, judges strive for clarity, comprehensiveness, and concision. Those objectives frequently are competing. Technically, of course, the actual judgment is encompassed in the judge’s orders, dismissing or upholding the claim and making such subsidiary orders as are required. That is the subject of any appeal; that the judge’s reasons for the orders are in some measure contested is irrelevant if no adjustment is sought of the orders.[49]
Reasons nonetheless matter. They serve multiple purposes. First, they explain how the judge arrived at the result. This is an explanation predominantly to the unsuccessful party, so s/he can understand why the judge ruled against them. Second, they provide transparency in identifying the foundation for the other party’s success. Given that party now has the benefit of an enforceable decision in their favour, there is public interest also in knowing such benefit is not the product of partiality or whim. Third, given the constitutional aspect of the judicial role, they are how judges speak to their oath: to “do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will”.[50] As part of the rule of law’s operation in a democratic society, the public (often represented by the media) must be able to understand what and why the judgment decides. But the judgment must speak for itself; regardless of the public interest that may follow, the judge cannot subsequently interpolate.
All that requires the judgment to be cogent, decisive, and well-reasoned. While judgment writing styles are intensely personal – and may reflect judges’ academic, commercial, litigation or policy backgrounds – something approaching a consensus now can be discerned. After a brief introduction of the dispute in general terms, background facts are set out, followed by the specific issues in dispute, the applicable law, and a review of the parties’ cases. Issue by issue, with reference to relevant law, the determinative facts are found, and the result explained. The formulation applies, whether at first instance or on appeal, in oral or reserved judgments.
Modern judgments favour clear identification of the issues for determination. They will likely be specified in isolation at the outset of the judgment, and form the often-express foundation for the judgment’s discussion of those matters.[51] Like expository essays at school, a clear judgment will say what is to be said, say it, and say what has been said.
Clarity of judgments is heavily reliant on comprehensive articulation of the issues to be determined. Good counsel will define the issues to be determined from their perspective, seeking to frame the case in the way that best permits its favourable answer. While judges obviously are not bound to those characterisations, they provide significant insight into the parties’ concerns, and – when all-encompassing and impartially phrased – divergence from responding to them can be difficult.

Judgments, judicial independence, and the rule of law

Although this paper is not the place for a rule of law disquisition, its place in judicial decision-making warrants some final comment.
As repository of the Court’s inherent jurisdiction – the residual power “whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them”[52] – High Court judges exercise their powers independently of any influence and subject only to the rule of law.
In its strictest conception, subject to binding authority and applicable legislation, that means judges decide cases uninfluenced by other judges, court resources and administration, government policy, or perceptions of public opinion. So stern a definition cannot be maintained in real life. Consistency of decision-making requires at least regard for analogous judgments; the relentless sitting timetable inevitably has impact on judgments’ finalisation and issue; trying to delineate governmental policy from parliamentary expression often is an exercise in futility; and – irrespective of (or perhaps due to) our own backgrounds, experiences and prejudices – we are expected to reflect contemporary New Zealand concerns in our decisions.
Nonetheless, the judgment is our individual resolution of the dispute before us, according to law. The “core” of rule of law considerations:[53]

… that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts …

alleviates against the risk our judgments are arbitrary expressions of personal whim, and ensure they are instead reasoned applications of legal principle and interpretations of statutory criteria to found facts.[54]

—Jagose J
3 March 2020

[1] John Priestley Chipping away at the judicial arm? (Harkness Henry Lecture, University of Waikato Law School, October 2009).

[2] The Hon Sir Anthony Mason AC KBE “The Nature of the Judicial Process and Judicial Decision-Making”, in Ruth Sheard (ed) A Matter of Judgment (Judicial Commission of New South Wales, Sydney, 2003) at 1.

[3] Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [130]; A v R [2016] NZSC 31 [2016] BCL 76 at 20; R v Hines [2007] 3 NZLR 529 at 539.

[4] Rolled Steel Products Ltd (Holdings) v British Steel Corporation [1986] Ch 246 (CA) at 309; Hoyle v Hoyle [2016] NZHC 3120 at [60]; King v Hoare (1844) 13 M&W 494.

[5] High Court Rules 2016 (“HCR”), r 7.3.

[6] HCR, r 7.3A(1). The Rules Committee presently is consulting the legal profession on various matters, including enhancements to enable early judicial identification of issues for trial: Rules Committee “Improving Access to Civil Justice: Initial Consultation with the Legal Profession” (Judicial Office for Senior Courts, Wellington, 16 December 2019) (“Rules Committee consultation”) at [21], [32(b)], [36], and [37]–[41]. Comments are sought by 1 May 2020.

[7] Matthew 26:41 Bible.

[8] HCR, r 1.9(2).

[9] Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) at 385. The explanation in McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR7.7.01]:

The test for an amendment to pleadings after the close of pleadings date is whether it is necessary to determine the real controversy between the parties and does not result in injustice to other parties or cause significant delay.

is not consistent with the Court of Appeal’s judgment, which only allows “the Judge here was entitled to treat the amendments as more in the category of those clarifying issues in dispute than in the category of those introducing distinct matters for the first time” (at 385).

[10] Evidence Act 2006, s 6(a).

[11] Stephen Gageler “Alternative Facts in the Courts” (2019) 93 ALJ 585.

[12] Evidence Act 2006, s 9.

[13] HCR, r 9.5.01.

[14] This is not the place to debate the merits of led or read evidence-in-chief. But there is such a debate, and it tends against oral evidence read from written statements: see Geoffrey Venning “Greater Efficiency in Civil Procedure” (address to joint NZ/Australia Bar Associations’ conference in Queenstown, NZ, 23–24 August 2019) at [31]–[40]. The Rules Committee also is consulting the legal profession on changing the presumptive mode of giving evidence: see Rules Committee consultation, above n 6, at [43]–[51].

[15] Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431; Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [1] and [23]–[32]. See also New Zealand Law Commission Evidence Law: Character and Credibility (NZLC PP27, 1997) at [115]–[119].

[16] T H Bingham “The Judge as Juror” in The Business of Judging (Oxford University Press, 2000) at 11.

[17] Man O’War Station Ltd v Auckland City Council (formerly Waiheke County Council) (No 1) [2002] UKPC 28, [2002] 3 NZLR 577; Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35; Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA).

[18] T H Bingham “The Discretion of the Judge” in The Business of Judging, above n 16, at 37.

[19] See “Modern Judicial Method” in Rick Bigwood Legal Method in New Zealand (Butterworths, Wellington, 2001) at 141–218.

[20] Lord Reid “The Judge as Law Maker” (1972) 12 JSPTL at 22.

[21] Lord Cooke “Fundamentals” [1988] NZLJ 158 at 158.

[22] Susan Glazebrook “Statutory Interpretation in the Supreme Court” (address to Parliamentary Counsel Office, Wellington, on 4 September 2015).

[23] M Russell and M Barber “Empirical Analysis of Supreme Court Decisions” in The Supreme Court of New Zealand: 2004–2013 (Thomson Reuters New Zealand, Wellington, 2015) at 19.

[24] At 19–20.

[25] R I Carter Statute Law in New Zealand (5th ed, Lexis Nexis, Wellington, 2015) at 135–137.

[26] North Shore City Council v Body Corporate 188529 [2010] NZSC 158, [2011] 2 NZLR 289 at 312; Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at 13; Frucor Beverages Ltd v Rio Beverages Ltd [2011] 2 NZLR 604 (CA) at [12].

[27] R v Kumar [2015] NZSC 124, [2016] 1 NZLR 204 at [28]; Sustain our Sounds Inc v New Zealand King Salmon Company Ltd [2014] NZSC 40, [2014] 1 NZLR 673 at [117]–[123].

[28] Helen Winkelmann “What Right Do We Have? Securing Judicial Legitimacy in Changing Times” (Dame Silvia Cartwright address, 17 October 2019).

[29] Sian Elias “Contemporary issues for courts – demystifying the judicial process” (address to the 15th Conference of Chief Justices of Asia and the Pacific, Supreme Court, Singapore, 29 October 2013).

[30] Bail Act 2000, ss 13(1) and 14(1A).

[31] Judicial Review Procedure Act 2016, s 19.

[32] Protection of Personal and Property Rights Act 1988, s 74(2) and (3).

[33] HCR, r 14.1(1); Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28]; Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].

[34] HCR, r 1.2.

[35] American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL); and Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 (CA).

[36] Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV 2007-485-1756, 30 July 2008 at [4], citing [Cayne] v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237.

[37] Wellington International Airport Ltd v Air New Zealand, above n 36, at [6]–[14].

[38] For specific performance, see: Butler v Countrywide Finance Ltd [1993] 3 NZLR 623 at 631; Attorney-General for England and Wales v R [2002] 2 NZLR 91 (CA); Bruce v Edwards [2003] 1 NZLR 515 (CA); McLean Tower Ltd v Ash Road Investments Ltd [2007] NZCA 307. For injunctions, see: TV 3 Network Ltd v Eveready New Zealand Ltd [1993] 3 NZLR 435, (1993) 6 PRNZ 430 (CA); Rogers v Television New Zealand Ltd [2007] NZSC 91, [2008] 2 NZLR 277. For restitution, see: National Bank of New Zealand Ltd v Waitaki International Processing (NI) Ltd [1999] 2 NZLR 211 (CA) at 215; Fortex Group Ltd (in rec & liq) v MacIntosh [1998] 3 NZLR 171 (CA).

[39] Kain v Hutton [2007] 3 NZLR 349 (CA) at [130]–[135].

[40] Laing v Lanron Shelf Co (No 56) Ltd [1994] 1 NZLR 562 at 571.

[41] Hasham v Zenab [1960] AC 316 (PC), applied in Katz v Jones [1967] NZLR 861 at 864.

[42] Beswick v Beswick [1968] AC 58 (HL) at 102.

[43] Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 34, [2019] 2 NZLR 864 at [107].

[44] See, for example, development of the Judges’ Rules, now contained in the Evidence Act 2006.

[45] R v De Havviland (1983) 5 CR App R (S) 109 at 114; Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607 at [27], commenting on Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) at 237.

[46] Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [38]; Matthew Palmer “The Rule of Law, Judicial Independence and Judicial Discretion” (address as Kwa Geok Choo Distinguished Visitor at National University Singapore, 20 January 2016). See also Murray Gleeson “Courts and the Rule of Law” in C Saunders and K Le Roy (eds), The Rule of Law (Sydney: Federation Press, 2003), 178.

[47] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]:

[A] general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary.

Compare Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[48] In the criminal appellate jurisdiction, the distinction to be given judicial discretion is diminishing: Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.

[49] Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13 at [25].

[50] Oaths and Declarations Act 1957, s18.

[51] A stand-out recent (albeit minority) example may be found in Love v Commonwealth of Australia [2020] HCA 3 at [4]:

The question of law stated for the opinion of this Court in these special cases is whether each of the plaintiffs is an “alien” within the meaning of [the Constitution]. The question as framed is apt to mislead as to the role of this Court. It is not for this Court to determine whether persons having the characteristics of the plaintiffs are aliens. Such an approach would involve matters of values and policy. It would usurp the role of the Parliament. The question is perhaps best understood to be directed to whether it is open to the Commonwealth Parliament to treat persons having the characteristics of the plaintiffs as non-citizens for the purposes of the Migration Act.

[52] I H Jacob “The Court’s Inherent Jurisdiction” (1970) 23 CLP 23 at 51; cited with approval in Taylor v Attorney General [1975] 2 NZLR 675 (CA) at 680, and Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767 at [29].

[53] T H Bingham The Rule of Law (Penguin Books, London, 2010) at 8.

[54] Sian Elias “Judgery and the Rule of Law” (address to Faculty of Law, Otago University, 7 October 2015).