Comments on: Sceptics rise to challenge

By: Richard C (NZ)

Richard C (NZ) — Sun, 15 Jul 2012 00:17:07 +0000

That assessment fits the High Court Rules RT:-

11.2 Types of judgment

A judgment may—

(a) be interim; or
(b) be final; or
(c) deal with any question or issue; or
(d) order any accounts, inquiries, acts, or steps that the court considers necessary.

http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM1819164.html?search=ts_act_judicature+act_resel

A combination of (b) AND (c) AND (d) would be the most desirable outcome but if the options are rigidly mutually exclusive (OR) as stated in the Rules then (d) it is.

By: Richard Treadgold

Richard Treadgold — Sat, 14 Jul 2012 23:24:16 +0000

My lay impression is that the judge may make any order he thinks just, from no action to ordering a reconstruction and anything in between. There’s a right of appeal against his orders or absence of orders, too.

By: Mike Jowsey

Mike Jowsey — Sat, 14 Jul 2012 21:20:08 +0000

Good luck guys. The culmination of a lot of work and expense. Hope that cheque from Big Oil arrives soon to defray costs.

If a judicial review is granted, what exactly does that mean? And what are the intended outcomes of such a review?

By: Richard C (NZ)

Richard C (NZ) — Sat, 14 Jul 2012 09:02:47 +0000

Going by 7.9 (2) Justice Venning could have been assigned this case from the outset and made the request for the SOC & D because (2) states:-

“On an originating application a Judge may direct the parties to file a statement of claim and of defence, respectively”

Therefore Justice Venning would already be very familiar with the issues (I would have thought). If so it follows that he would allow cross questioning because otherwise all the Justice is doing is listening to Queens Counsels read from the documents what the Justice has already read from them. That would be daft. If the judge only made a judgment from what is written in the documents there would be need for a hearing.so there must be more than that allowed in court (more steps in the proceeding) including cross questioning surely. If that’s so then there will be matters raised verbally in court as a result of the cross examination that are not explicitly laid out in the documents.

If I’ve got this correct, the judge will already have an idea as to the judgment (from the SOC & D) but that idea could be turned around in court next week by the verbal exploration by each Counsel of the other parties Statements. That’s where they earn their keep – or not.

By: Richard C (NZ)

Richard C (NZ) — Sat, 14 Jul 2012 06:27:58 +0000

Whether cross examination is allowed seems to be at the discretion of the judge depending on constraints (e.g. to secure the just, speedy, and inexpensive determination of a proceeding):-

Directions as to conduct of proceeding

(1) A Judge may, by interlocutory order,—
(a) give directions to secure the just, speedy, and inexpensive determination of a proceeding:
(b) fix the time by which a step in a proceeding must be taken:
(c) fix the time by which all interlocutory steps must be completed:
(d) direct the steps that must be taken to prepare a proceeding for substantive hearing:
(e) direct how the hearing of a proceeding is to be conducted.

(2) On an originating application a Judge may direct the parties to file a statement of claim and of defence, respectively.

http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM1818866.html?search=ts_act_judicature+act_resel

By: Richard C (NZ)

Richard C (NZ) — Sat, 14 Jul 2012 05:34:50 +0000

Should have been:-

“If allowed [AND the judge is fresh to the issues], your wrong footing strategy may be valid but if not I’m doubtful of it.”

By: Richard C (NZ)

Richard C (NZ) — Sat, 14 Jul 2012 05:19:55 +0000

By “only a hearing” I was making the distinction between criminal matters (e.g. the judge and jury Scott Guy murder trial) and civil matters (e.g. jurisdiction to deal with summary judgment applications) in the High Court. See http://www.justice.govt.nz/courts/high-court/high-court-home

Whether cross examination will be allowed is probably somewhere in these High Court Rules http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM147653.html?search=ts_act_judicature+act_resel

If allowed, your wrong footing strategy may be valid but if not I’m doubtful of it.

What I am getting at is that the High Court deals with “complex” civil matters. It would seem to me that it makes a great deal of difference to the outcome if a “complex” matter has had at least 18 months to jell in an adjudicating judge’s mind (along with revisions) than if the judge comes in cold on Monday morning.

In the former, more complexity can be assimilated and understood clearly by the judge than in the latter unless there’s an extended deliberation period after the hearing. If you’ve ever tried to assimilate with clear understanding in a few hours a complex matter that has taken 100s of man-hours to compile you’ll know what I mean.

By: Richard Treadgold

Richard Treadgold — Sat, 14 Jul 2012 04:27:22 +0000

I heard a comment yesterday that seemed to allow for cross-examination. I’ll check. Handing in a late argument is a good way to wrong-foot your opponent, as they may have no time to get a rebuttal into writing. The case is determined on the documents, not verbal argument, so if it’s not in writing, it doesn’t matter. Obviously it’s not possible to bewilder the judge with an undeclared point. Finally, there’s been no indication of when the judgement might be handed down. The judge won’t know that until he’s heard the case.

You say it’s “merely a hearing” but it requires Queen’s Counsels and up to a week at in-court rates of pay, so it’s a hearing that stands to win or lose the parties a large amount they value at several levels.

By: Richard C (NZ)

Richard C (NZ) — Sat, 14 Jul 2012 04:01:31 +0000

I would agree if there were to be cross-examination but as I understand that wont be happening because the application is merely a hearing so the opportunity to wrong foot your opponent is rather limited.

When a judge is hearing both sides relatively independently, the judge is in effect your ultimate opponent and the one to convince in order to obtain a review (there’s no jury). If you are hitting the judge cold with a technical argument (previously undeclared in SOC) that takes a bit of assimilating even for legal intellects you may only succeed in wrong footing the judge I fear.

I guess the assimilating really takes place in the judges deliberation AFTER the hearing. You inform that the hearing will take about a week but has there been any indication of the time the judge will take after that to deliberate before handing down the decision?

By: Richard Treadgold

Richard Treadgold — Sat, 14 Jul 2012 03:04:22 +0000

Perhaps. But the fact is that the court hearing is where the case is heard, and strategy often involves last-minute changes to finally declare your “real” arguments, in an effort to wrong-foot your opponent. So there’s nothing to be lost in starting your examination of the cards when all movement has ceased.