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

Introduction

  1. 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. Continue reading “Judicial decision-making: what do (trial) judges do? [ADLS seminar, 3 March 2020]”

Electronic casebooks – a trial judge’s experience [NZLS seminar, 30 September 2019]

Introduction

  1. The first significant use of electronic documents at trial in New Zealand was in the Serious Fraud Office’s Equiticorp prosecution in mid-late 1992 before Tompkins J.[1] At the time, international best practice commended judges have “a micro-computer”, “a floppy disk drive”, and “preferably a colour monitor”, with “access to the court system’s central computer”.[2] The standards emphasised such was not for ease of display, but for the judge’s engagement with the presented material, requiring software functionality for (and training in) electronic document creation, editing, and management. Continue reading “Electronic casebooks – a trial judge’s experience [NZLS seminar, 30 September 2019]”

“Loyal to what?”: the role of parliamentary opposition

“… political opposition is empowered and dignified in a democratic system, and… pays tribute to and teaches lessons about… ‘the provisional nature of political authority’ in circumstances of plurality.”

Andrew Little’s recent High Court victory, finding his commentary on aspects of a Niue holiday resort’s financing to be qualifiedly privileged from defamation liability, casts light into the shadows of Her Majesty’s Loyal Opposition’s constitutional role. Continue reading ““Loyal to what?”: the role of parliamentary opposition”

Avoiding unjust enrichment’s perils

“… an Aristotelian conception of justice”

New Zealand courts have long looked askance at claims of unjust enrichment, doubting such claims constituted causes of action in their own right (Real Cool Holdings Ltd v Northpower Ltd [2012] NZHC 1604 at [38]), and conscious of “the perils that might be thought inherent” in their reliance on perceptions of what was ‘just’ between the parties (Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11, [2012] 2 NZLR 726 at [140]). Continue reading “Avoiding unjust enrichment’s perils”

“It’s not all about you”: limiting the Privacy Act’s intrusions

“The words ‘about an individual’ direct attention to the need for the individual to be a subject matter of the information.”

In Harder v Proceedings Commissioner [2000] 3 NZLR 80 (CA) – while noting what constituted ‘personal information’, defined as “information about an identifiable individual” for the purposes of the Privacy Act 1993, was not at issue in the case and remained “open for determination when it directly arises” – the Court of Appeal warned “An unqualified approach to what constitutes ‘information about an identifiable individual’ will lead readily to breaches of one or more of the information privacy principles”. The “unqualified approach” adds significantly to the Act’s regulatory costs – both in compliance, and in remedies for interferences with privacy. No appellate judgment since has interpreted the meaning of the Act’s ‘personal information’. Continue reading ““It’s not all about you”: limiting the Privacy Act’s intrusions”

Judges and judging

“The unique stressors of judicial life”

Last year, the country’s 46 High Court judges and associate judges, hearing cases at 18 High Court locations around the country, managed from circuits in each Auckland, Wellington, and Christchurch in comparable proportion to their catchment, delivered over 3,300 judgments – roughly 1.5 judgments per judge per sitting week, well over 90% within three months of hearing. Continue reading “Judges and judging”

“Plea bargaining”

World famous in New Zealand

A Comparative Look at Plea Bargaining in Australia, Canada, England, New Zealand, and the United States” (Marcus and others, 57 Wm & Mary L Rev 1147 (2016)) provides a timely and informative backdrop to last week’s media commentary on “plea bargaining”, in connection with the reduction from murder to manslaughter charges to which three year old Moko Rangitoheriri’s carers (while his mother attended another child in hospital) pleaded guilty. Continue reading ““Plea bargaining””

Being relevant

Courts contemplate their place in the world

In extracurial speeches, senior Commonwealth judges recently have been querying courts’ roles in delivering civil justice.

Identifying a gap in the market for services to a specialised form of participant, the “involuntary self-represented litigant” (to be distinguished from the “querulent” in pursuit of “self-obtained justice”), the Court of Appeal’s Justice Kós – drawing heavily on European civil law experiences – proposes a closely managed and partially inquisitorial process in the District Court. In his address to the Arbitrators’ and Mediators’ Institute of New Zealand and International Academy of Mediators Conference in Queenstown in March 2016 (“Civil Justice: Haves, Have-nots and What to Do about Them”), Justice Kós drew on the High Court Rules’ objective of “the just, speedy and inexpensive determination” of civil disputes to note the justice and efficiency deficits attributable to unrepresented litigants. Continue reading “Being relevant”

Supreme Court allows limited protection of digital data

The Supreme Court has this week made a small dent in the proposition, upheld by the Courts of Appeal in New Zealand and England last year, that digital data is not property for the purposes of the law.

The Supreme Court held digital data is property for the purposes of the criminal law.  But civil reliance on property rights will not suffice to protect electronic information – at least for now. Continue reading “Supreme Court allows limited protection of digital data”

Court takes ACCC back to basics on price fixing

An identically constituted Full Court of the Federal Court of Australia has twice found against the Australian Competition and Consumer Commission (ACCC) in significant price-fixing appeals.

In the process, the Court emphasises the importance of sound economic analysis to competition law, to the end that even price-fixing’s deemed contravention of the Trade Practices Act still requires a competition analysis.

In Flight Centre v ACCC, in a salutary lesson about market definition, the Court found the travel agent did not compete with airlines in any relevant market. Similarly, in ACCC v ANZ, the Court found mortgage brokers did not compete with the bank in the pleaded market. And in as salutary a lesson of statutory construction, in ANZ, the Court also held even agreement on the amount of payments to customers was not price-fixing as defined. Continue reading “Court takes ACCC back to basics on price fixing”