29 April 2005

Discount Brands - a C+ for the Supreme Court

Westfield (New Zealand) Limited v North Shore City Council I've reflected more on the Supreme Court's decision. I give them a C+: - The idea of more scrutiny for notification decisions is okay because it is a gate-keeper decision otherwise not subject to checks and balances. The decision is essentially operational and doesn’t involve any policy content. However, it still needs some deference because it is question of judgment for an “expert” decision‑maker/tribunal. - However, justifying a high degree of “correctness” on the use of the phase “if the consent authority is satisfied” is spurious. Rather than “satisfied” being the “strongest decisional verb”, its history in administrative law has been based on it being one of the more “subjective”, not objective”, types of decisions (cf “in the opinion of the Minister”). - It is artificial and unhelpful to separate the notification into 2 decisions – first on sufficiency of evidence and secondly the actual decision itself. - The “test” of adequacy or sufficiency is largely unhelpful and extends beyond established grounds for reviewing factual errors (no evidence to support factual conclusion or (genuine) mistake of fact). The test simply restates a truism that the decision-maker have sufficient evidence but, in my view, the decision fails to go on how the supervising court should approach (non-)compliance with this standard. Only Blanchard J suggests the idea that the Court might consider whether the Council “could reasonably be satisfied” that the information was adequate. Others seems to implicitly suggest that judicial intervention could be justified whenever there is insufficient evidence. - In particular, the Court fails to consider functional consequences of reviewing adequacy; effectively confers right of appeal against the merits of non-notification. Any time an aggrieved person considers the Council got it wrong, they can ex post facto find (or create?) evidence which casts into doubt the Council’s factual conclusion – thereby arguing the Council didn’t have sufficient or adequate evidence before them. There is no finality for such decisions. In any event, most of the relevant considerations are better characterised as factual assessments, rather than factual findings, where the decision maker exercise their expert judgment about these matters. - The nub of the case (and, incidentally, the Videbeck case which started this sufficiency of evidence approach) seems to be more defects in logic or reason. That is, the relevant decision-makers make to demonstrate the basis on which they made their decision, including rejecting the views of officers or other experts. In my view, a more workable approach would be to simply examine whether the decision-maker’s decision (ie, the substantive decision not to notify) was reasonable (in a simpliciter sense, not the more deferential Wednesbury/Woolworths test). This would capture the – I think, generally accepted – deficiencies in this case but provide a better and more predictable standard for other cases as well.

27 April 2005

"I respectfully dissent"

Small v United States I love the nature and tone of the dissenting judgments from the US Supreme Court. The quote that follows is the final paragraph from one of Thomas J's dissents. The case itself was about the phrase "convicted in any court" in legislation prohibiting people with convictions from possessing firearms - the majority ruling that it encompassed only domestic, not foreign, convictions.
The Court never convincingly explains its departure from the natural meaning of §922(g)(1). Instead, it institutes the troubling rule that “any” does not really mean “any,” but may mean “some subset of ‘any,’ ” even if nothing in the context so indicates; it distorts the established canons against extraterritoriality and absurdity; it faults without reason Congress’ use of foreign convictions to gauge dangerousness and culpability; and it employs discredited methods of determining congressional intent. I respectfully dissent.

21 April 2005

Supreme Court, public notification under the RMA, and Discount Brands

Westfield (New Zealand) Limited v North Shore City Council Unsurprised by the outcome; still reflecting on the analysis and supervisory standard set by the Court (the local authority must have "adequate" information before it makes a decision on notification - but initially rather concerned by what that means!

19 April 2005

Berryman bridge - contempt?

Someone posed the question whether someone (a member of the public) was party to contempt if they referred to or downloaded the Butcher report. My analysis (from NZMLJ) below:

My understanding is that the contempt allegation against Moodie arises in relation to him failing to comply with the (ex parte?) order for him to return the 3 copies of the report he obtained. Although it is being reported in some places that the Court “suppressed” the report, there does not appear to be any suppression orders in relation to the report or proceedings. However, the High Court has so far been declining requests to inspect to Court file – even to obtain the details of the order to return the document I understand the order was made by Justice William Young on (or around) 24 March 2005, although the basis seems to be unclear. Ordering the return of the document appears to be in the context of the Court’s supervision of the discovery process. However, some reports have indicated that Moodie obtained the document independent of the court proceedings (the application declined was, after all, to seek discovery of the report). Wild J noted that he was “unsure quite how, or from whom” Moodie obtained the report but indicated his view that he held it “in his capacity as counsel for the plaintiffs and for the purposes of this proceeding” and that rule 312 of the High Court Rules applied to its use and disclosure. How the document was obtained by Moodie appears to be central. If it was obtained through the discovery process, then the implied undertaking that the document wont be used for a collateral or ulterior purpose will apply. However, this rule only applies where documents are produced under compulsion in the discovery process (see Telstra NZ Ltd v Telecom NZ Ltd (1999) 14 PRNZ 108). There remains the question of whether the use of the document can be restrained as a breach of confidence. This is a slightly different beast though and, given the now apparent widespread availability of the report in the public domain, there is an argument that the document has now lost its confidential nature?

A couple of things since then: - The High Court has confirmed (orally) that there is no supression order. The order only requires the return of the copies of the report and Moodie to advise who holds copies of the document. - Moodie did apparently receive a copy of the report through the court process (offered on a confidential basis by the Crown to show him that there was nothing in it) but contests that he received it on a confidential basis - he says he specifically reserved the right to use it if it did contain significant things. - Apparently, the report circulating on the web is not the copy that Moodie received in discovery. It's said to be the copy that Ron Mark was sent anonomously. - Haven't had a chance to consider the Court Martial rules - but there is a prospect that these rules impact on the confidentiality and availability of the report.

11 April 2005

Prisoners and Bill of Rights damages

No developed or strong views at this stage - however, this issue did come up at a dinner party recently and prompted some interesting (but truncated) points and animated discussion. Those present promised to reflect further - this post will allow them to contribute their views directly. Prisoners' and Victims' Claims Bill

7 April 2005

Collapsing Parliament

NZ Herald: Cullen walkout means dinner wins the day A remarkable event last night on Member's Day. Parliament was unilaterally suspended by the Goverment by removing the sole minister from the House after one party removed leave to suspend the House for a offical dinner for the President of Indonesia. Standing Order 38 provides:
SO38 Minister to be present A Minister must be present during all sitting hours of the House. If a Minister is not present, the Speaker interrupts proceedings and the bell is rung for up to five minutes. Where no Minister appears, the Speaker adjourns the House until the time for its next sitting.

UPDATE: For more on the Opposition's response (including an attempted (and very creative) filibuster), see Scoop: Standing Orders Protest Yields A Partial Victory.

UPDATE 2: Hansard Advances are now up. 6 April 2005 (the collapse) 7 April 2005 (the fall-out) Transcripts of exciting bits in full in comments to this post.

6 April 2005

Light relief: High Court of Australia, Big Bang theory, and litigants in person

http://www.austlii.edu.au/au/other/hca/transcripts/2002/C4/1.html This is the transcript of a real case before the High Court of Australia. I would try and summarise the argument of the applicant in person (something like he's failed to get credit for proving that the Big Bang theory in false and that, in fact, the world doesn't exist) but in doing so I am probably mischaracterising his argument, in particular, the link to his application - in this case, an electoral petition challenging the election in the Australian Capital Territory seat of Fraser. Enjoy! PS "big snaps" to Jacques for the heads-up on this case UPDATE: But wait, there's more... That was the second time the case ended up in the HCA. See the earlier one also: http://www.austlii.edu.au/au/other/hca/transcripts/1996/C102/1.html

5 April 2005

Strict construction of criminal statutes?

R v de Montalk (07.03.05; CA157/03) I'm quite uneasy with this recent decision of the Court of Appeal. On its face, it’s a simple case about whether the Crown must prove that a person has actually been operating the vehicle when they are charged under section 34(1)(b) of the Land Transport Act 1998 (“operating a motor vehicle on a road without displaying current evidence of a vehicle inspection” (ie a warrant of fitness). The Court ruled that it need not because the offence was a “stationary vehicle offence” (by virtue of section 41A of the Transport Act 1961) and therefore subject to the (statutory) strict liability provisions applicable to such offences. I’ve previously come across the peculiarities of the transport legislation and, particularly, the issue of whether offences which refer to “operating” a vehicle can qualify as “parking” or “stationary vehicle offences” (particularly when the vehicle is, factually, parked or stationary at the time the “operating” offence is committed). But I didn’t see the “ingenious” solution the Court came up with. It goes like this: - The warrant of fitness offence used to be in the Transport Regulations (reg 85) made under the Transport Act. - Section 41A of the Transport Act 1961 defines “stationary vehicle offences” to include:
(c) Any offence against any regulations made under this Act or the Transport (Vehicle and Driver Registration and Licensing) Act 1986 that is declared by such regulations to be a stationary vehicle offence for the purposes of this definition.
(Before 1997, the section had specifically referred to reg 85.) - Regulation 136A of the Transport Regulations specifically declares that regulation 85 is a stationary vehicle offence. (This provision was enacted when section 41A was made generic in 1997.) - When the Land Transport Act 1998 was passed, it: * repealed (revoked?) reg 85 (but not reg 136A), and * provided the warrant of fitness offence in section 34(1)(b) of the (new) Land Transport Act. - By dint of section 22 of the Interpretation Act (“a reference in an enactment to a repealed enactment is a reference to an enactment that, with or without modification replaces, or that corresponds to, the enactment repealed”), the reference in (still live) reg 136A to (now repealed) reg 85 must be read as being a reference to the (new) section 34(1)(b) because section 34(1)(b) “replaces” or “corresponds” to reg 85. - Therefore, section 41A of the Transport Act “deems” the offence in section 34(1)(b) of the Land Transport Act 1998 to be a “stationary vehicle offence” and subject to the codified strict liability provisions in section 41A of the Transport Act. Cunning (by their own admission, their argument was “semantically a little awkward”), but not very satisfying. The Court’s reliance on the Parliament’s intention and purpose is weak. It said:
It is simply not credible to attribute to Parliament an intention that the relevant offence no longer be a stationary vehicle offence. In situations such as this, it is important where possible to construe legislation in a way consistent with, and not destructive of, the overall scheme.
In my view, imputing some notional intention to Parliament in this situation is, in itself, not credible. Significantly, the “offence” had been moved from the Transport Act and placed it in the Land Transport Act. There was a clear demarcation of the offences moved. “Moving vehicle offences” or “driving offences” were moved to the Land Transport Act, “stationary vehicle offences” or “parking offences” remained in the Transport Act. However, the interpretation effectively treats the offence as being one against the Transport Act, not the Land Transport Act. Also, the Court seems to be pulling itself up by its boot-straps when it relies on section 22 of the Interpretation Act. Section 34(1)(b) is a complete provision. There is no redundant reference or reference overtaking by repeal. There is no necessity for it to be “paired or tied” with reg 136A or section 41A of the Transport Act. It operates effectively independantly - the Crown just has to prove that the offender was "operating" the vehicle as an essential ingredient of the offence. Most troubling though, in my view, is the lengths to which the Court was prepared to go to ensure the provision was subject to the strict liability provisions and in doing so ignored the fundamental interpretative principle that, in cases of ambiguity in criminal offences, the courts ought to give the benefit of any uncertainty to an accused. Lord Reid in Sweet v Parsley [1969] 1 All ER 347 said:
[I]t is a universal principle that if a penal provision is rasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted.
Our Court of Appeal endorsed that principle in Millar v MOT [1986] 1 NZLR 660 (Cooke P and Richardson J):
[I]t is legitimate and in our view important to pay more than lip service to Lord Reid's proposition in Sweet v Parsley that it is a universal principle that if a penal provision is reasonably capable of two interpretations, that interpretation which is most favourable to the accused must be adopted. The qualification reasonably is also important and prevents an overweighting in favour of the accused.
Ashworth (Principles of Criminal Law (2 ed, 1995, p76)) describes its justification as being part of the Rule of Law or the principle of legality (along with non-retroactivity and maximum certainty) as follows: One justification for this might be fair warning: where a person acts on the apparent meaning of a statute but the court gives it a wider meaning, it is unfair to convict that person because that would amount to retroactive lawmaking. Of course, this is principle is not absolute. It implicitly recognises that the provision must have reasonably tenable alternative interpretations – the principle cannot be used to circumvent clear language. Also, the principle complements the principle of interpretation (recognised in s5 of the Interpretation Act) that the meaning of a provision must be “interpreted in the light of its purpose”. The House of Lords in DPP v Ottewall [1970] AC 642 has previously indicated any “doubt” about lexically-possible interpretations might be resolved by reference to the purpose and statutory context without need to resort to the principle of strict construction. Ashworth describes that its “proper place is in a sequence of points to be considered by a court when construing a statutory offence, i.e. only if doubt remains after examining the legislative purpose”. However, in my view, this case wasn’t one readily resolved by reference to the purpose and scheme of the legislation (if anything, it added more doubt!). It will be interesting to see if the case gets appealed to the Supreme Court (and, if it does, whether that makes any difference!).

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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