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Brief Counsel

The Supremes' greatest hits

22 January 2013

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​For those with an appreciation of classic music from the 1960s, the Supremes were the outstanding vocal group on the Tamla Motown label.  For those (fewer in number) with an interest in New Zealand jurisprudence, “The Supremes” is shorthand for the judges of our Supreme Court:  the five judges sitting on our court of final appeal.

In the spirit of the seasonal tendency to identify highlights of the past calendar year, we offer our selection of the (legal) Supremes’ five greatest hits of 2012, below.

Supreme Court Act 2003, section 3:

(1) “The purpose of this Act is –

(a) to establish within New Zealand a new court of final appeal comprising New Zealand judges –

(i) to recognise that New Zealand is an independent nation with its own history and traditions; and

(ii) to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with 
      an understanding of New Zealand conditions, history, and traditions; and

(iii) to improve access to justice; and

(b) to provide for the court’s jurisdiction and related matters; and

(c) to end appeals to the Judicial Committee of the Privy Council from decisions of New Zealand courts; and

(d) to make related amendments to certain enactments relating to courts or judicial proceedings.

(2) Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of 
      Parliament.”

As serious fans will know, two members of the group (sorry, Court) retired last year.  Justices Peter Blanchard and Andrew Tipping have gone, save for guest appearances when a permanent member cannot sit.  They were original members, elevated from the Court of Appeal when appeals to the Law Lords of the Privy Council in London were disestablished a decade or so ago.  This leaves the Chief Justice, Dame Sian Elias, as the surviving original member.

The replacements on the Court are Justices Robert Chambers and Susan Glazebrook, appointed from the Court of Appeal and likely to have lengthy terms on the Supreme Court.

As most fans will also know, the Supreme Court selects the cases it will hear by granting or refusing leave for applications to appeal against Court of Appeal decisions.  The rather opaque statutory criterion for leave is whether a Supreme Court determination is “necessary in the interests of justice”.  This is, however, elaborated by references to whether the appeal involves matters of “general or legal importance” (including “significant issues relating to the Treaty of Waitangi”), of “general commercial significance”, or a possible “substantial miscarriage of justice”.

And as diehard fans also know, courts of final appeal are scrutinised by sceptical practising lawyers, academic lawyers and (occasionally) a few politicians or news media types for signs of “judicial activism”, also known as “development” of the law.  The contrast is with “judicial restraint” (or “deference”) also known as “maintaining predictability” in the law.

It is also the case that courts of final appeal go through cycles as personnel change, and the wider social and/or political context changes.  The High Court of Australia under the last three chief justices there offers a good example of such phenomena.

We are not foolish enough to offer a prediction about the impact of the 2012 changes in our Supreme Court personnel, but, as they say, will be watching that space.

As for our 2012 selection of “greatest hits”, there is a modest amount of logic in our reasoning.  The Supremes’ main judgments included wrestling (yet again) with the boundaries of negligence, with particular reference to aspects of the “leaky buildings” saga; and some things to say about pre-Treaty norms and the “common law” (usually thought of as judge-made, rather than legislative, rules) of New Zealand.  And they managed to produce a not insignificant judgment about abortion with none of the publicity which would accompany such an event in North America.

In any event, and in chronological order only, our Top Five from the Supremes in 2012:

1. Paki v Attorney-General (June 2012)

  • Decided that 1903 coal mines legislation which vested certain riverbeds in the Crown (overriding any earlier title of Maori owners) applied only to riverbeds “navigable” as a matter of fact.
  • Concluded that the relevant part of the upper Waikato River was not navigable in 1903.
  • Emphasised that the “common law of New Zealand” adopted English common law only insofar as applicable to local circumstances, and does not necessarily include English conveyancing presumptions as to ownership of lakes and rivers.

This decision dealt with only one of several issues on the appeal (others are to be argued in February 2013), reversing the Court of Appeal on the Coal Mines Act “navigability” point.  Justice William Young dissented, providing obscure information about the use of “punts” (other than on the Avon).

Infallibility?

“ … many of the matters that are subject to this process of further appeals are those hard cases over which reasonable judges may and often do differ.  In that sense there is no right answer.  Justice Jackson of the United States Supreme Court is often quoted – ‘We are not final because we are infallible, but we are infallible only because we are final’, Brown v Allen (1953) 344 US 443, 540.  He went on to say that a provision of a further appeal beyond the Supreme Court would no doubt lead to a proportion of successful appeals.”  (Law Commission, 1989)

2. North Shore City v Attorney-General (June 2012)

  • Reiterated that the existence of a tortious (non-contractual) duty of care is to be considered by careful reference to the salient features of the case and within a framework of two broad fields of inquiry (the relationship between the parties; and external considerations), and declined to follow the formulae (likely less plaintiff–friendly) used in Australia or England.
  • Concluded, having particular regard to the statutory context (the Building Act 1991), that the Building Industry Authority owed no duty of care in relation to its 1995 report on procedures relating to inspection of homes for weathertightness – either to local authorities or to property owners.
  • Emphasised caution in striking out claims before trial, including where the law is confusing or developing.

The majority judgment settles these matters.  The Chief Justice dissented on the substantive issue, and would have let the claims against the BIA go to trial.  Court of Appeal decision upheld.

3. Right to Life NZ v Abortion Supervisory Committee (August 2012)

  • Concluded that the Committee’s powers under the 1977 abortion legislation do not extend to inquiring into or reviewing particular decisions by certifying consultants, but does permit (and require) “generalised” inquiries (such as workload, approach, and perhaps socio-ethnic data) to assess national consistency and inform its reports to Parliament.
  • Observed that appeals must be against decisions, not comments, in lower courts, but even “forthright” comments may be justified in some cases.  (But, in “this highly sensitive field no good purpose would be served by this Court weighing in with its own opinion”.)

A majority opinion, partly reflecting the relevance of the separate disciplinary role of the Health and Disability Commissioner under other legislation.  Justices McGrath and William Young dissented, considering that the Committee’s statutory powers were wide enough to seek information retrospectively from certifying consultants about diagnoses of individual cases.  Court of Appeal decision (on substantive interpretation issue) upheld.

Why have appeals?

“Why is the decision on appeal likely to be more acceptable and correct?  The reasons relate to the body which hears the appeal, the issues it considers, and the process it follows.  The appeal court is often composed of a greater number of judges who are able to combine their several abilities.  The parties, their counsel, and the appeal judges themselves will also have substantial assistance from the fact that the matter has already been heard and been the subject of a reasoned judgment or the summing-up in the case of a criminal jury trial and that the appeal process as a consequence is focused on a particular problem or problems.  Moreover appeal judges should be less affected by pressure of time.”  (Law Commission, 1989)

4. Body Corporate No. 207624 (Spencer on Byron) v North Shore City (October 2012)

  • Extended local authority liability for negligent building construction inspections to claims about commercial buildings:  it would not be just and reasonable to restrict the local authority’s duty of care to residential buildings.

This decision represents a fairly emphatic restatement (perhaps revisionist reinstatement) of a liberal – plaintiff friendly – approach to negligence liability in New Zealand.  (“We accept that other courts and judges could reasonably evaluate the policy factors differently from us.”)  It decides that the NZ departure from English law in Hamlin (1994) was not only correct on general principles in relation to residential buildings but could unapologetically be extended to all buildings.  Justice William Young produced a lengthy dissenting judgment.  Court of Appeal decision reversed.

5. Takamore v Clarke (December 2012)

  • Established an “executor as first decider” approach to the question of burial/cremation of human remains – that is, unless the point is promptly litigated (in which case the courts will make the decision), the executor or personal representative has the right and duty to make the burial decision.
  • Confirmed that the executor here, the deceased’s long-term partner, had validly decided in favour of burial in Christchurch – reflecting the deceased’s life choices and the views of both the executor and their adult children – and that the removal of his body to the Bay of Plenty by his wider whanau was invalid.
  • Stated that the common law of New Zealand requires references to tikanga, where appropriate – here as part of the circumstances to be considered by the executor (and subject to a broad judicial review).

This decision was a narrower victory for spouses (legal or de facto) than might be thought from the headlines.  The deceased’s 20 years in Christchurch, with limited contact with his Bay of Plenty whanau, and the views of the adult children, were significant factors.  There is some difference of emphasis between the (joint) majority and the two separate concurring judgments on the approach to reflecting tikanga in the “common law of New Zealand” – a topic bound to be explored in relevant litigation over future decades.  No dissents.  Court of Appeal decision upheld.

An underarm view …

“A bird’s eye view of the major common law jurisdictions moving west from the International Date Line in 1954 would start with New Zealand.  In those days, the judicial system of New Zealand operated almost perfectly.  That slice of Scotland which was the small city of Dunedin had a much more significant role in the life of that country then than now, and the Scottish tradition in New Zealand life generally was strong. … There has been no famous names since Salmond, but any reported case would reveal a steady, skilful, tradesmanlike approach.  Thereafter two events happened which, for better or for worse, have changed New Zealand law for ever.  On 8 November 1972, Robin Brunskill Cooke was appointed to the bench.  On 25 September 1990, the Bill of Rights Act 1990 (NZ) came into force.”  (Justice Heydon, High Court of Australia, 2012) 

These Top Five decisions, and their selection, include matters of difficulty and controversy.  But then that is the stuff of dispute resolution.

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