Shiels, Trevor J --- "Multiple judgments and the New Zealand Supreme Court" [2016] OtaLawFS 17; The Search for Certainty: essays in honour of John Smillie 212

I was delighted to be invited to contribute this paper to a collection of papers to honour Professor John Smillie on the occasion of his retirement from the University of Otago.

I have known John since I was a young student. He immediately impressed as a very able scholar and teacher, with an independent mind in no way cowed by the hierarchy and tradition of either academia or the legal profession in which he had briefly practised.

Having been in a relatively large class for the compulsory undergraduate Torts paper, I then welcomed the opportunity to join his optional undergraduate Administrative law paper and also his Advanced Torts paper for the LLB Honours course. The structure of the course was that each of the very small number of students wrote a paper of (perhaps) 10,000 words. The paper was marked by John and returned back to the student, and there was then a seminar discussion of the paper, led by the student, over a period of about two hours. During the year, each student wrote three papers. It was a wonderful introduction for honours students to researching and thinking about what the law was, how it had developed, the limitations of the law and how it might develop further. It was through John’s Advanced Torts paper that I learnt a huge amount about research and writing skills, developed my own intellectual approach, and realised just how much I enjoyed the opportunity, regrettably not always available in a busy legal practice, to find out just about everything there is to know about a particular legal issue.

I am pleased to say that ever since my undergraduate days, John has been a mentor, a colleague, and most of all a friend.

I have said that John was not cowed by the hierarchy and tradition of the legal world. That is not to suggest that he advocated revolutionary approaches to legal issues, certainly not by judges. John’s reputation and the hallmark of his scholarship is very much as a “small c” conservative. He has a huge respect for the accumulated wisdom of the common law and is very much against departing from established common law principles and approaches for the whims of fashion. That is not to say that he sees the common law as unchangeable, but for him changes should pay proper regard to existing learning and be properly justified.

This paper was not originally written for this book but many of the points made could well be illustrated by John’s writings. He has a keen interest not just in what legal decisions say but how courts work. I am only too aware that John knows much more than I about some of the areas of law that I mention, particularly those relating to buildings and negligence.

John’s writing has often been controversial, which is no bad thing, and always well written, tightly reasoned, and interesting. In many ways, he is the model legal academic.

This paper discusses multiple judgments and the New Zealand Supreme Court. I propose first to set out the role of the Supreme Court as the ultimate appellate court (or ‘the court of last resort’), and explain what I mean by multiple judgments. Secondly, I make some observations on the practice of multiple judgments within our legal system. In doing this, I will record some of the things that have been said about multiple judgments, including dissenting judgments, over the years. Thirdly, I want to make some brief comments on some of the New Zealand Supreme Court decisions with multiple judgments, particularly concurring judgments. Fourthly, I look at the statistics for the New Zealand Supreme Court. Finally, I ask some questions about whether the current New Zealand practice is serving the exposition and clarity of the law.

Space does not permit a full exposition of the various arguments for and against multiple judgments, but some will become apparent.

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Since 2004, the New Zealand Supreme Court has been the ultimate decider of legal disputes in New Zealand.1 Of course, not all legal disputes end up there. Nor is there a right to take every dispute there. The Supreme Court only hears cases if one of the parties, having failed in a lower court, is given leave by the Supreme

* This paper is a modified version of the F W Guest Memorial Lecture 2014, published as

Court to re-argue part or all of the case in the Supreme Court. The Court will only give leave if it is satisfied that it is in the “interests of justice” to do so.2 Section 13 provides guidance on what that expression means, but ultimately it is the Court’s decision. The Court has no original jurisdiction and usually there will have been at least one appeal already.3

The Court sits as a panel of five Judges when hearing an appeal.4 Section 31 directs that “the judgment of the Supreme Court must be in accordance with the opinion of a majority”. In this context the “judgment” is the formal decision on the outcome, and it is generally sufficient to think of the decision in binary terms. Either the judgment allows the appeal from (usually) the Court of Appeal or it does not allow it. The Judges may be unanimous in what they think the outcome should be, or they may not. Even where they are unanimous as to the outcome, they may get there by different reasoning processes. For the ultimate yes/no decision whether to allow or disallow the appeal, this does not matter greatly. Majority rules.

(1) The Supreme Court must not give leave to appeal to it unless it is satisfied that it is necessary in the interests of justice for the Court to hear and determine the proposed appeal.

(2) It is necessary in the interests of justice for the Supreme Court to hear and
determine a proposed appeal if

(3) For the purposes of subsection (2), a significant issue relating to the Treaty of Waitangi is a matter of general or public importance.

(4) The Supreme Court must not give leave to appeal to it against an order made by the Court of Appeal on an interlocutory application unless satisfied that it is necessary in the interests of justice for the Supreme Court to hear and determine the proposed appeal before the proceeding concerned is concluded.

(5) Subsection (2) does not limit the generality of subsection (1); and subsection (3) does not limit the generality of subsection (2)(a).

However, courts have a wider function than resolving the immediate disputes between the immediate parties. In some cases, they may decide, sometimes in a quite prescriptive way, what the law is on a particular point. In other cases, they may state general principles on the basis of which the particular case is decided and, implicitly, future cases are to be decided. The reality is that, at least in many areas of the law, the courts make the law.5

It is part of English legal tradition, largely followed in the United States and most Commonwealth jurisdictions that, in the absence of relevant legislation, principles (or sometimes rules) established in decided cases are relied on to decide other cases and to resolve other disputes. Where a court further up the hierarchy has clearly resolved a particular issue or stated a legal principle, courts lower in the hierarchy are bound to treat that as the law, just as much as they are bound to treat legislation as the law. Think, for example, of the modern law of negligence. It is the courts, rather than Parliament, that have developed the principles and rules that enable owners of defective buildings to seek compensation from builders, Councils, subcontractors and the like, and lower courts are bound to follow the principles established by higher courts.6 Parliament had tinkered around the edges dealing with matters such as limitation periods, but has not generally set out to restate or modify the principles decided by the courts.

But even Parliament’s laws are subject to the courts’ interpretation, sometimes in quite unexpected ways.7 Further, the courts may later change their minds about the interpretation or application of particular legislation. The limitation period for defective buildings is a classic example of this. What it means for a cause of action to “accrue” has been interpreted in different ways at different times in different jurisdictions, driven more by notions of fair outcomes than linguistic analysis of the legislation.

5 Lord Reid famously said, “[w]e do not believe in fairy tales any more, so we must accept the

fact that for better or worse judges do make the law.”: Lord Reid “The Judge as Lawmaker” [1972] JSPTL 22. See also Anthony Mason “The Judge as Law-Maker” (1996) 3 JCULR 1. An Advisory Group to the Attorney-General specifically identified the clarification and development of the law, consistent with the (unspecified) limits of judicial decision-making as a role for the Court: Replacing the Privy Council: A New Supreme Court (Officer of the Attorney General, Ministerial Advisory Group Report, April 2002) at [2.1], [41.2] and [47].

Some lawyers, both practising and academic, consider that courts focus too much on trying to “do justice” between the particular parties and too little on applying established principles and/or giving clear guidance for other disputants. That may sound harsh. What can be wrong with “doing justice”? Apart from the inherent (if sometimes unacknowledged) subjectivity of notions such as fairness and justice, it has to be remembered that only a very small proportion of disputes and potential disputes lead to the filing of a claim in court.8 Only a small proportion of claims filed go to a hearing. Parties to proceedings often settle before a hearing. Only a tiny proportion of disputes are heard by the Supreme Court.9 There must surely be a balance between doing perfect justice, whatever that is, for the immediate litigants and applying and/or establishing precedents. The personal, social, and economic cost of having each dispute resolved by a court, let alone going through one or more appeal processes, could not be sustained. Better still, clear guidance might enable disputes to be completely avoided. A Supreme Court decision I will refer to below is relevant to that issue.

It is commonly said that the experience of the common law suggests it is unwise to try to decide a novel issue unless an outcome, or perhaps a “just” outcome, cannot be reached without doing so. However, as already noted, one major function of appeal courts is clarification and development of the law. This is especially the case for the highest court in the hierarchy.10 Such clarifications are not mere byproducts of deciding the particular dispute before the court. This is confirmed by section 13 which tells us that it is the interests of justice for the Supreme Court to hear an appeal if it involves a matter of “general or public importance” or a matter of “general commercial significance”. Those criteria would not be apt if the sole, or perhaps even the principal, reason for the Supreme Court hearing an appeal was to “do justice” in the particular case.

8 Statistics on court workloads broken down by jurisdiction for the year to December 2014 can

10 See Replacing the Privy Council: A New Supreme Court, above n 5, at [2.1]. In 1966, when the Lord Chancellor announced that House of Lords no longer regarded itself as absolutely bound by its previous decisions he said, “[t]heir Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.”: Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 (HL).

But what happens when judges in a multi-member court disagree? This may be as to the outcome. Alternatively, and this is more the focus of this paper, they may agree as to the outcome but not be able to agree on the reasons for that outcome, or even where they substantially agree on the reasons they may not be willing or able to join together in explaining them. This is where it gets complicated. The court delivers a “judgment”, that is, the formal decision on the dispute between the actual parties involved in the case. Each judge has an “opinion”. In general usage, the formal expression by each judge of that judge’s opinion is also referred to as a judgment, and I will use that expression. Each judgment will usually state not only that judge’s conclusion on what the formal outcome should be, but also the reasoning that leads to that conclusion.11 That can create a difficult, and sometimes impossible, task of deciding what the law is for the future – what old-fashioned lawyers and Latin scholars would call the ratio decidendi - the reason for the decision.

Traditionally, lawyers and judges would carefully distinguish between the ratio decidendi of the court, and obiter dicta – other things said. It was the ratio decidendi that lower courts were obliged to follow.

Why can a multi-person court deliver multiple judgments, where outcome, reasons, or both may differ? Other bodies that have important public roles and very robust debate before delivering the product of their deliberations speak with one voice. Think of Parliamentary legislation. Whatever debates and compromises there may have been leave no clear record in the Act of Parliament. While a small part of the background, namely Parliamentary history, may be looked at to interpret an Act, it is not part of the Act.12

Compare also decisions of Cabinet or the Executive Council. There is a strong convention of Cabinet solidarity, with no publication of debate or dissent.13

11 Judgments may be identified as joint judgments, or on other occasions Judge B will say that he or she agrees with Judge A but wishes to add something, or agrees with most, but not all, of Judge A’s judgment. There are numerous variations of this. Sometimes no judge is named as the author, but a judgment is stated to be that of the court.

12 See Ross Carter Burrows and Carter on Statute Law in New Zealand (5th ed, LexisNexis NZ, Wellington, 2015) at 278-306 for a discussion of the admissibility of parliamentary history as an aid to interpretation.

13 In Attorney General v Jonathan Cape Ltd [1976] QB 752 (QBD) [the Crossman Diaries case], Lord Widgery CJ said, “to identify Ministers who voted one way or the other is objectionable because it undermines the doctrine of joint responsibility”. In New Zealand, the confidentiality of the proceedings of the Executive Council is protected by an oath or affirmation not to

While a formal paper presented to Cabinet might occasionally be called in aid to consider the basis of some Cabinet decision, the debate that took place within Cabinet never is.14

Strictly, the same could be said of the courts. The formal judgment or order that is formally issued by the court usually says nothing of the reasons. However, judge-made law largely consists of the reasons for decisions. In the context of courts, we must not forget juries. Until comparatively recently, if a jury could not reach a unanimous decision, it could not make any decision.15 Explanations are not expected or allowed.16 What goes on in the jury room stays in the jury room.17

Surprisingly, there is no express statutory authority for any statement of reasons by the Supreme Court, let alone multiple judgments. Section 31 provides for, and requires, nothing more than majority rules as to the outcome. Even the idea that a majority of the judges hearing an appeal should decide the outcome of it is not beyond debate. Professor Jeremy Waldron has recently questioned it in the context of constitutional review of legislation.18

What about other courts? The traditional English approach was that decisions were announced by speeches and delivered in order of seniority of the judges. Each judge would give his (and historically they were all male) narrative of the facts, statement of the law or legal principles, and conclusion. There was often relatively little reference by one judge to what the others said in their speeches. The expression used was that they were delivered seriatim, that is in series - one after the other.

directly or indirectly reveal their contents, and discussion at Cabinet meetings is confidential. See Cabinet Office, Cabinet Manual 2008 at [1.46] and [5.21].

14 Actual discussion is neither formally recorded by the Cabinet Secretariat nor recorded in the Minutes. Cabinet Office Cabinet Manual 2008 at [5.21]. In Environmental Defence Society Inc v South Pacific Aluminium (No 2) [1981] NZCA 31; [1981] 1 NZLR 153 (CA), the Court of Appeal directed the Cabinet Secretary to produce certain documents relating to both a Cabinet Committee and the Executive Council for inspection by the Court, and later requested that the Cabinet Paper be put in evidence. The concern, however, was the material presented to Cabinet, and there was no attempt to inquire into the discussion within Cabinet.

15 The Juries Act 1981 was amended by s 19 Juries Amendment Act 2008 to permit majority decisions in certain circumstances for both criminal cases and civil cases.

17 It may be contempt to question jurors after the verdict and publish their replies. A juror who speaks of the jury’s deliberation and verdict may also be in contempt. See Laws of New Zealand Juries (online ed) at [68].

18 Jeremy Waldron “Five to Four: Why Do Bare Majorities Rule on Courts?” (2014) 123 Yale LJ 1692.

When the United States Supreme Court was established, the seriatim method of delivering decisions was initially adopted.19 That changed in 1801, when Chief Justice John Marshall was appointed, and he presided over the Court for 34 years. He strongly favoured one decision delivered “for the Court” as giving the Court more stature and authority. While that gave an appearance of unanimity, that did not mean there was in fact unanimity, and it appears that Chief Justice Marshall delivered some judgments for the Court in this way even though he did not agree with them. There were certainly arguments for minimising the appearance of uncertainties and disagreements in a new court, dealing with a new constitution in a new nation, with new notions such as review of legislation for compliance with a constitution.

In the first four years in which Marshall was Chief Justice, all decisions were unanimous. This horrified Thomas Jefferson, who in describing the practice, said:20

An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief justice, who sophisticates the law to his own mind, by the turn of his own reasoning.

While Marshall CJ continued to favour unanimity, the practice weakened in 1804 when Johnson J was appointed. He upset the other Judges by insisting on delivering a separate (although concurring) opinion, suffering much private criticism from them. Subsequently there were occasional concurring or dissenting judgments from others also. Despite his strong preference for unanimity, Marshall CJ came to accept that individual Judges could give individual opinions where they felt strongly. Later in his career, he gave quite a few himself! It seems to be a pattern that many judges give more and more dissenting or separate judgments as their careers progress.

The United States Supreme Court still follows the practice of an opinion being delivered “for the Court”, with Judges free to add anything else they want to say in a separate concurring or dissenting opinion. This assists in assessing what the ratio decidendi of a decision is.

19 For a general history of the practice of separate judgments in the United States Supreme Court, which I have drawn on for my comments on the United States Supreme Court, see Karl Zobell “Division of Opinion in the Supreme Court: A History of Judicial Disintegration” (1959) 44 Cornell L Rev 186.
20 Letter to Justice Johnson, quoted by Zobell, above n 19, at 114.

In New Zealand, until the Supreme Court was established, the highest court was the Judicial Committee of the Privy Council. It had a different approach. There was a constitutional explanation for this difference. While the House of Lords decided cases, the formal position of the Privy Council was that it advised the King or Queen. It was not considered appropriate for the King or Queen to be given different advice by two (or more) people. There was only one opinion published by the Privy Council. Any dissent or compromise stayed behind closed doors. Secrecy of deliberations was also the traditional approach, later reinforced by Order in Council.21 In 1996, it was decided that dissenting opinions, but not concurring opinions, could also be delivered.22

Despite the different tradition in the Privy Council, there does not seem to have been much consideration given as to how New Zealand’s new Supreme Court would announce decisions.23 That is, at least at a formal level. I understand there may have been some discussions between the first Judges appointed as to how far they would strive to be a collegial court, speaking with one voice.

Where judges may deliver multiple judgments, there is no doubt a complex web of institutional and inter-personal factors that influence when and how often they do so. Some judges acquire and/or celebrate in the sobriquet of the “great dissenter”.24 Other writers, and I suspect judges, regard dissenting judges as being “prophets with honour.”25 Another expression that appears often in the literature is that a dissent is an appeal to the intelligence of a future day. This is attributed to Chief

Justice Kirby, formerly of the High Court of Australia, subscribed to this view in respect of his own dissents. He is on record as saying that some of his minority

21 PC 2/289 (4 February 1878) (UK).
22 Judicial Committee (Dissenting Opinions) Order 1966 SR & O 13/1966 (UK).

23 In Replacing the Privy Council: A New Supreme Court, above n 5, at para [88], the desirability of collegial decisions was discussed, while recognizing that agreement might not be possible. It considered that a collegial approach should ensure that points of agreement are identified and expounded and there is proper engagement on the points of difference. There was no discussion of multiple judgments leading to the same conclusion.

24 Among the Judges the label has been applied to are Justice Oliver Wendell Holmes of the United States Supreme Court (more for the significance of his dissents than the number), Justice Harlan, Justice Kirby and Justice L’Heureux-Dube of the Supreme Court of Canada.

25 Alan Barth Prophets with Honor; Great Dissents and Great Dissenters in the Supreme Court (Knopf, New York, 1974), Claire l’Heureux-Dube “The Dissenting Opinion: Voice of the Future” (2000) 38 Osgoode Hall LJ 495.

26 Charles Evans Hughes “The Supreme Court of the United States: Its Foundation, Methods and Achievements: An Interpretation” (Columbia University Press, New York, 1928) at 68.

judgments “will be appealing to a different and future time”.27 Justice Heydon, also of the High Court of Australia, had by the end of his career acquired the role of “the great dissenter”. He perhaps inherited it from Justice Kirby. He explained the reasons why he gave separate judgments (not just dissents). Among them were his dislike of split infinitives and dangling participles in the writing of other judges.28
I am not sure whether he was being ever so slightly whimsical here. But different writing styles can no doubt be a factor in a reluctance to join in another judge’s writing. A very senior member of the New Zealand judiciary has confirmed that to me. I take rather more literally, and personally have sympathy with, Justice Heydon’s view that you do not know the answer until you have carefully analysed the question and potential answers in a reasoned way, and that writing an opinion imposes discipline on that process.29 For his last eighteen months in the High Court of Australia, Justice Heydon did not join in a judgment with any other Judge, with about an even split of concurrences and dissents.30

There is an element of mythologizing in both “prophets with honour” and “intelligence of a future day”. It has been suggested that even the most able of dissenting Judges is vindicated by later decisions no more than 10 per cent of the time.

Richard Posner, and other United States law and economics writers, unsurprisingly analyse the act of writing a separate judgment in economic terms. What is the net benefit to a judge in issuing a dissenting judgment?31

Writing about dissent in United States Federal Courts of Appeal, Judge Dianne P. Wood of the Seventh Circuit uses either a card playing analogy or a musical reference, whichever you prefer, by entitling her article “When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court”.32 The reshuffle option her title refers to arises when a judge inclined

30 Andrew Lynch “Changing Faces of the High Court Ease Dissent” The Australian (online ed, Sydney, 14 February 2014).

31 Lee Epstein, William Landes and Richard Posner “Why (and When) Judges Dissent: A Theoretical and Empirical Analysis” (John M Olin Law & Economics Working Paper No. 510 (2nd series)) available at <www.law.uchicago.edu/files/file/510-wml-rap-dissent.pdf>.
32 Dianne Wood “When to Hold, When to Fold, and When to Reshuffle: The Art of

towards dissenting identifies the different conclusion as arising from a different view of what the critical issue is. Can other members of the court be persuaded to give a different answer if they can first be persuaded to change the question? It seems from her article that there is still work to be done in the United States on analysing the nature of and reasons behind the phenomenon of dissenting judgments.

In New Zealand, analysis of such issues rarely goes beyond the anecdotal, generally related to the specific case rather than the phenomenon itself.

It cannot be denied that dissent is sometimes influential with a legislature or later courts. I mention two famous examples. In Plessy v Ferguson in 1896,33 the United States Supreme Court upheld, by seven to one, the constitutionality of state laws providing for “separate but equal” public facilities for blacks.34 There was a dissent by Justice Harlan.35 Although his dissent, and indeed Justice Harlan, attracted little attention in the intervening years, it was vindicated by the 1956 decision of Brown v Board of Education,36 the school segregation case. As an aside it is worth noting, that in recognising the constitutional and political importance of Brown, the Justices worked very hard to achieve a unanimous decision.37

In 1942, the House of Lords decided the case of Liversidge v Anderson.38 This was wartime. Mr Anderson was the Home Secretary. Under Defence Regulations, he could intern people if he had “reasonable cause” to believe they were persons of “hostile associations”. Liversidge was interned under those regulations. The Lords accepted Anderson’s certificate that he had “reasonable cause” for such a belief in relation to Liversidge. In the absence of an allegation and proof of bad faith, the majority was not prepared to exercise any judicial review of the reasonableness of the belief, although it needs to be said that they relied very heavily on the nature of the particular power and the circumstances of war. Lord Atkin famously dissented, comparing the majority’s approach to Humpty Dumpty. “When I use

Decisionmaking on a Multi-Member Court” (2012) 100 CLR 1445. She acknowledges her reference is to the Kenny Rogers song “The Gambler”.
33 Plessy v Ferguson [1896] USSC 151; 163 US 537 (1896).
34 The state legislation in issue required separate railway cars for blacks and whites.

35 Although his judgments in this and other cases are hardly free of racist attitudes. See Eric Maltz “Only Partially Color-Blind: John Marshall Harlan’s View of Race and the Constitution” (1996) 12 Georgia State L Rev 973, and Gabriel Chin “The Plessy Myth: Justice Harlan on the Chinese Cases” (1996) 82 Iowa L Rev 151.
36 Brown v Board of Education [1954] USSC 42; 347 US 483 (1954).

37 Cass Sunstein “Did Brown Matter?” (3 May 2004) The New Yorker <www.newyorker.com/ magazine/2004/05/03/did-brown-matter>.
38 Liversidge v Anderson [1941] UKHL 1; [1942] AC 206.

a word it means just what I choose it to mean, neither more nor less.”39 From the written judgments, it is not possible to assess the tone of what would have been an orally delivered judgment.

Most dissents in New Zealand are at least expressed in a civil way. This cannot be said of the United States. In one case, Justice Alito was ostentatiously rolling his eyes while Justice Ginsburg was reading her dissent.40

Liversidge and Plessy involved dissents, rather than concurring judgments. I suggest that concurring judgments are even less likely to be “vindicated” by later decisions or legislation than dissenting judgments.

I want to now refer to a very small selection of the decisions of the New Zealand Supreme Court that I consider aptly illustrate some of the issues arising with multiple judgments, especially multiple concurring judgments.

This was the very first substantive decision of the New Zealand Supreme Court. It is perhaps the only truly constitutional decision the Court has had to make, although because the relevant legislation has subsequently lapsed under a sunset provision the actual decision is no longer constitutionally significant. It concerned the circumstances in which the leader of a parliamentary party could advise the Speaker that the proportionality of election results was being distorted by the

39 While the decision has never been formally overruled, it was described by Lord Reid in Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, at 73 as “a very peculiar decision”. In IRC v Rossminster Ltd [1979] UKHL 5; [1980] AC 952, Lord Diplock thought that the time has come to acknowledge openly that the majority in Liversidge v Anderson was expediently and perhaps, at the time, excusably wrong and the dissenting speech of Lord Atkin was right (at 1011). Lord Scarman said that the ghost of Liversidge v Anderson need no longer haunt the law. Unfortunately, none of the other three Judges expressly referred to it, meaning that it cannot be said that it was formally overruled. In New Zealand, Lord Atkin’s judgment is commonly cited without reference to it being a dissenting one. See, for example, Attorney-General v Manga [1999] 1 NZLR 129 (CA) at 135 and Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577 (CA and SC) at [126] per Hammond J in CA.

40 Dana Milbank “Justice Samuel Alito’s Middle-School Antics” The Washington Post (online ed, Washington, 24 June 2013). For a New Zealand example of somewhat less than courteous disagreement see the judgment of Thomas J in Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91, especially at [152], [153] and [156].
41 Awatere Huata v Prebble [2005] 1 NZLR 289 (SC).

actions of a member, with the consequence that the member’s seat was vacated.42 The Court gave five judgments. All the Judges agreed that proportionality was distorted because Mrs Awatere Huata continued to serve in Parliament after she had ceased to be a member of the ACT Party, for which she had been elected.43 That unanimous conclusion was enough to decide the case. However, the judgments went further. Elias CJ and Gault J expressed doubts about whether there was a reviewable “statutory power of decision”,44 and were inclined to the view that the law required the Speaker to vacate Mrs Awatere Huata’s seat if Mr Prebble said he had that reasonable view. It may have been justifiable to record that reservation, but given that they did not express concluded views on the point, and it was not raised in the lower courts or in argument, I suggest that it could properly have been dealt with by recording in a unanimous judgment that the Court was not required to decide that point. Various views were expressed about the scope of parliamentary privilege, and whether the ACT Party (as opposed to the caucus) had any obligation to allow Ms Awatere Huata to re-join the party after her membership had lapsed, but none of the judgments turned on any of these points and there was no majority support for any of the views expressed. Were those discussions necessary or helpful?

Under the New Zealand Bill of Rights Act 1990, there is a prohibition on retrospective increases in penalty. That is, the penalty should be in accordance with the law at the time the offence was committed. Four of the five Judges decided that a change in the parole laws, abolishing automatic release after two-thirds of the term, did not infringe that prohibition. Elias CJ dissented. The case raised important points, and I do not query the appropriateness of her dissent, but it may be respectfully doubted whether it was necessary or helpful for the four Judges who made up the majority to each deliver separate judgments.

The appellants agreed to sell to the respondent a lot in a proposed subdivision of their property. The Resource Management Act 1991 deemed the contract

42 Under ss 55A-55E Electoral Act 1993, as enacted by s 5 of the Electoral (Integrity) Amendment Act 2001.

subject to a condition that a survey plan would be deposited. Such a plan could not be deposited without compliance with all conditions imposed by the local authority. There was a shared contemplation that the local authority would impose conditions relating to stormwater and sewerage for the new lot. There was also, at the time of the agreement, a shared expectation that a neighbour would co-operate in creating an easement for this purpose, but there was nothing in the agreement reflecting that expectation. In due course, the local authority imposed the expected conditions, which all the Judges considered were reasonable and no public law issue arose in relation to them. However, the neighbour’s co-operation was not forthcoming. The cost of complying with the local authority’s conditions, but without the neighbour’s co-operation, was about ten times greater than the cost with the neighbour’s co-operation, and compliance without the neighbour’s co-operation would create adverse amenity effects for the appellants’ remaining land.

There were essentially two issues for the Court. First, what was the appellants’ obligation to satisfy a local authority’s condition of consent? Elias CJ and McGrath J held that the appellants were bound to satisfy the local authority’s conditions of consent unless to do so made performance of the contract “radically different” or “change[d]” the subdivision,47 or unless to do so would make the subdivision “something different”.48 The other Judges considered that it was artificial to distinguish between the reasonableness of the local authority’s conditions and the reasonableness of the steps the appellants would need to take to satisfy them. The appellants had a composite duty to take reasonable steps to ensure that the subdivision plan was deposited and the shared expectation of the neighbour’s cooperation was relevant to whether they had taken reasonable steps.49 It is perhaps surprising that each of the Judges saw the same Court of Appeal decision50 as dictating the outcome he or she reached, but at least the outcome on this point is relatively clear.

The second issue was whether, once the appellants had (as the majority held they had) met their obligation to try to satisfy the local authority’s conditions and have the plan deposited, they should have given the purchaser notice and reasonable opportunity to himself satisfy the conditions so that the plan could be deposited. Tipping J, after a reasonably lengthy discussion of earlier case law, held that the

49 Steele v Serepisos [2006] NZSC 67, [2007] 1 NZLR 1 per Tipping J at [28]; Anderson J at [136]-[137]; Blanchard J at [13], concurring with Tipping J.
50 WR Clough and Sons Ltd v Martyn [1978] 1 NZLR 313 (CA).

party who had the contractual obligation to try to fulfil a contractual condition, and had taken the required steps but had been unable to fulfil that condition, was not required to give notice before bringing the contract to an end.51 Blanchard J concurred with Tipping J, and briefly discussed the point.52 Anderson J came to the same conclusion.53 Elias CJ agreed with the conclusions of Tipping J, Blanchard J and Anderson J.54 McGrath J dissented on this point also.55 There is a clear, although not unanimous, resolution on the notice point also.

The Misuse of Drugs Act 1975 differentiates between simple possession of illegal drugs and the more serious offence of possession for supply or sale. Section 6(6) provides that a person found in possession of certain quantities of illegal drugs is deemed to possess them for the purpose of supply or sale, until the contrary is proved. Section 25(c) of the New Zealand Bill of Rights Act 1990 affirms the presumption of innocence. Section 6 of the New Zealand Bill of Rights Act 1990 provides that if a statutory provision can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other meaning. So how should s 6(6) Misuse of Drugs Act 1990 be interpreted? It is perhaps surprising that five judgments and 290 paragraphs were necessary for the Court to unanimously decide that s 6(6) cannot be construed so as to create only an evidential burden. Yet that conclusion was all that was necessary to decide the case.57 It may respectfully be wondered whether this was the appropriate case for five separate judgments with detailed consideration of the interrelationship of ss 4, 5 and 6 of the New Zealand Bill of Rights Act 1990, especially when their conclusions differed. No Judge felt able to concur in another Judge’s opinion on this point. Has the clarity of the law been enhanced?

57 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 per Elias CJ at [5] and [39]; Blanchard J at [56]; Tipping J at [95], [149] and [166]; McGrath J at [256], [257] and [260]; and Anderson J at [288] and [290].

How does a court interpret “disorderly” in the context of a peaceful protest? In this case there was a majority (three to two) decision, but with five separate judgments.

Mr Brooker believed that the Police, and one constable in particular had treated him unfairly. He sat on the verge outside that constable’s house at 9am (knowing she had been on night shift) with a placard, played his guitar without amplification and sang in a normal voice. Could this be regarded as “disorderly behaviour”, having regard in particular to the guaranteed right to freedom of expression in the New Zealand Bill of Rights Act 1990?

At least three ofthe five Judges held that for conduct to be disorderly something more than even serious private annoyance was required,59 although their explanations of what more was required differed. Brooker’s conviction was overturned by the majority of three to two. While the case raised some important issues, it may be wondered whether five separate judgments were really necessary and whether the proliferation of judgments helps make the law clearer for the future.

This case was about interpretation of a contract, formed by correspondence between lawyers. Did a stated price for gas include the cost of transmission to the purchaser’s site? The decision of the Court of Appeal,61 in which it had, on this point, overturned the decision of an experienced trial judge62 is surprisingly brief. It did not attempt a full exposition of principles of contractual interpretation, referring to one case and one text. The unanimous decision by the Supreme Court to overturn the Court of Appeal and restore the High Court judgment is not, of itself, surprising or controversial.

Each of the Judges would have restored the High Court judgment on an “error correction” basis. Blanchard J63 accepted the prevailing orthodoxy that negotiations might be used to establish parties’ knowledge of circumstances with reference to which they use the words in the contract, but left open for another day how much

62 Bay of Plenty Electricity Ltd v Vector Gas Ltd HC Wellington, CIV-2004-485-2287, 3 Aug 2007, Harrison J.
63 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [11]- [14].

further the courts should go towards admitting evidence of negotiations. He held that the contract was ambiguous but that the only “commercially sensible” interpretation was that the price excluded transmission. Gault J64 agreed with the reasons and conclusions of Blanchard J and considered that the case could be approached without any detailed examination of the principles applicable to the interpretation of formal contractual documents.

Tipping J65 held that context was always an ingredient in interpretation, even without a patent ambiguity, although there was one here. Reference to the wider commercial context and earlier correspondence made clear the sense in which the parties should be taken to have used the disputed expression, namely that the stated price was exclusive of transmissions costs.

McGrath J66 held the ordinary meaning of the language was plain and unambiguous (namely that the price was inclusive of transmission costs) but that it was not necessary to find ambiguity before taking a contextual approach. He took a rather narrower approach to use of the factual background to aid interpretation. He held that the background circumstances indicated that the “plain and unambiguous” interpretation flouted common sense. However, it seems that he did not consider the pre-contractual material fell within any exception that allowed its use for interpretation. But he then used the same pre-contractual material to find a “common understanding” or “mutual assumption” that the price was exclusive of transportation costs, even though it was inconsistent with what was expressly recorded in the contract. It was unconscionable for the respondent to depart from that mutual assumption, and it was estopped from doing so.

Wilson J67 held that on the ordinary and unambiguous meaning of the relevant words the price was inclusive of transmission costs. It would have been permissible to go outside the contract if the contract was ambiguous, but it was not ambiguous. However, it was also permissible to go beyond the contract when the contract made no commercial sense. On that basis, he held the parties must have intended the price to be exclusive of transmission expenses.

While it might not have been possible to meld a unanimous “error correction” judgment out of these views, it should surely have been possible to say all that could usefully be said in fewer than five judgments.

There are no doubt occasions when a Court uses a particular case to either restate or reshape principles in an area of law even if such a full discussion is not necessary to make the decision, but this was a surprising case for any such approach, especially given the inability of the Judges to reach much consensus on anything other than the actual outcome. Was it the occasion to discuss the wider questions such as the full scope for the use of evidence of negotiations, or the relevance of subsequent conduct? I do not think it was. I query whether a multiplicity of, at best, barely reconcilable statements on issues that did not need to be decided served any purpose.

The decision has done more to muddy than clarify how to interpret a contract, surely a matter of commercial significance. It has attracted much controversy, and is almost universally regarded as unsatisfactory.68

It is to be hoped that, at some stage, another occasion arises where the Supreme Court can authoritatively (and with at least a majority agreement to a set of conclusions and reasons) set out the principles of contractual interpretation to be applied in New Zealand. While there is of course room for legitimate differences of opinion on how a commercial contract should be interpreted, there are very good reasons for having some certainty as to what those rules are. Such certainty might, hopefully, influence behaviour at the time when contracts are formed, and would almost certainly provide parties with much greater predictability of outcome when disputes arise.

I have taken these few examples purely from those decisions where the Judges gave five judgments. There are numerous other examples, including from those cases with four, three or two judgments, but the issue is at its starkest where there are five separate judgments.

How prevalent are decisions with multiple judgments in the New Zealand Supreme Court? On my assessment, there have been 209 substantive decisions in

68 Jessica Palmer and Andrew Geddis have nominated it as the worst decision handed down by the Supreme Court. See “What Was That Thing You Said? The NZ Supreme Court’s Vexing Vector Gas Decision” (2012) 32 UQLJ 287.

the calendar years, 2004-2013.69 The Court made its decision with a unanimous judgment in 56 per cent of cases. An analysis of the substantive decisions of the New Zealand Supreme Court in the calendar years 2004-2013 is as follows.

Calendar Year	Decisions	Unanimous	Decisions with Multiple Judgments
2004	3	1 (33%)	2 (67%)
2005	13	9 (69%)	4 (31%)
2006	23	14 (61%)	9 (39%)
2007	21	11 (52%)	10 (48%)
2008	22	14 (64%)	8 (36%)
2009	30	17 (57%)	13 (43%)
2010	34	20 (59%)	14 (41%)
2011	25	17 (68%)	8 (23%)
2012	22	9 (41%)	13 (59%)
2013	16	6 (38%)	10 (62%)
Totals for period	209	118 (56%)	91 (44%)

In 2014, Justice Susan Glazebrook publicly stated that the current Court is conscious of the desirability of producing more unanimous judgments.70 While I do not doubt what she said, the above statistics do not show a significant decrease in decisions with multiple judgments - if anything, they show an increase, although in fairness it should be noted that the above analysis is only to the end of 2013.

In 15 cases – 7 per cent, each Judge has given a separate judgment. That is not necessarily a complete decision covering all factual and legal issues, but for whatever reason, no two Judges have been able to give a joint judgment. That is one decision in every fourteen. A table indicating the number of judgments in each decided case is below.

69 Views on the exact number might differ in areas such as separate costs decisions, recall applications (now numerous) and various other interim or procedural decisions.

70 Susan Glazebrook, Justice of the Supreme Court of New Zealand, “Do they say what they mean and mean what they say? Some Issues in statutory interpretation in the 21st century” (public address, Otago University Faculty of Law, 13 August 2014.) The paper is published as, Susan Glazebrook “Do They Say What They Mean and Mean What They Say? Some Issues in Statutory Interpretation in the 21st Century” [2015] OtaLawRw 7; (2015) 14 Otago LR 61.

Number of Judgments in each Substantive Decision:
1 Judgment	119 decisions (57%)
2 Judgment	40 decisions (19%)
3 Judgment	29 decisions (14%)
4 Judgment	6 decisions (3%)
5 Judgment	15 decisions (7%)

It is worth noting which Judges are delivering their own judgments in which no other Judge fully concurs. However, I need to add several caveats. First, the issue this paper considers is multiple judgments. All decisions with more than one judgment fall into this category. The analysis below identifies only judgments in the name of a single Judge.

Secondly, this analysis does not identify which are dissents and which are concurring judgments. It is concurring judgments that may be harder to explain and justify.

Thirdly, I express no views on whose judgment is better or best in any particular case.

Judge	No. Of Decisions Judge Participated In	No. Of Individual Judgments Delivered By That Judge	Percentage Of Decisions In Which Individual Judgment Given By That Judge
Elias CJ	195	50	25.6%
Gault J	42	10	23.8%
Keith J	21	4	19.0%
Blanchard J	182	17	9.3%
Tipping J	172	32	18.6%
McGrath J	186	23	12.4%
Anderson J	78	10	12.8%
Wilson J	47	4	8.5%
William Young J	62	11	17.7%
Chambers J	10	1	10%
Glazebrook J	21	2	9.5%

Alan Paterson, a Professor at Strathclyde has written two fascinating books about the United Kingdom’s highest court.71 For both, he has had the invaluable benefit of (often confidential) interviews with interested parties, including judges at various levels. In the second of these, “Final Judgment: The Last Law Lords and the Supreme Court”, published in 2013, he refers to a prevailing view among judges that “concurrences should be curbed”. One unnamed judge explained to him:72

If I wanted some comments added I would tend to go to the person that I was agreeing with and say, ‘Can you see your way to adding these observations?’ If he says, ‘No’ I would then think very carefully whether the comments were important enough to warrant a separate judgment, and the answer would probably be not. But I can think of lots of cases where I have simply agreed without additional comment on the footing that the additional comments I would have made have been incorporated in the judgment I am agreeing with.

Lord Carnwath, then of the England and Wales Court of Appeal but now sitting in the Supreme Court, was sufficiently perturbed by multiple judgments to say, in a published Court of Appeal judgment:73

Was it necessary for the opinions of the House to have come to us in the form of six substantive speeches, which we have had to subject to laborious comparative analysis to arrive at a conclusion? Could not a single majority speech have provided clear and straightforward guidance, which we could then have applied directly to the case before us?

There is no easy answer. While I have noted the absence of a clear statutory basis for publishing dissenting or separate reasons (or indeed for publishing any reasons) there is no doubt that reasons are expected from courts, not just by the parties but also from the wider legal and general communities. No less can be expected in an open democracy. Nor do I suggest that there should be any formal curbs on separate judgments, whether they are dissenting from a majority decision, concurring in a majority decision but for fundamentally different reasons, or concurring in the majority decision for broadly similar reasons. It must, I think, be a matter of judgment for the individual judge.

71 Alan Paterson The Law Lords (Macmillan Press, London, 1982); Alan Paterson Final Judgment; The Last Law Lords and the Supreme Court (Hart Publishing, Oxford, 2013).
72 At [169].

My analysis and comments concerns only published separate judgments. Comments in relation to various courts indicate that from time to time separate judgments are prepared but then the point of difference is accommodated in a judgment that is issued in the name of more than one judge.

The decisions of the New Zealand Supreme Court do not readily show a uniform practice of how far the Judges have carefully considered the views of the other Judges who are party to the decision. Some judgments appear to have been prepared largely in isolation, although perhaps with a comment on points of difference appearing as much as an afterthought. In other cases there are clear cross-references. Sometimes an individual Judge can be seen to confine himself or herself to commenting on points of difference. There may be room for a more consistent practice here, as surely a separate judgment has greater value and utility where the points of difference are highlighted and explained.

I have noted the tradition of the common law to change by increment, generally in cases where the existing pattern of precedent for some reason cannot provide an appropriate answer. It is not doubted that courts, particularly courts of last resort, also have a duty, when appropriate, to provide expositions of general principles. Sometimes a case might properly be decided without such an exposition but a clear exposition concurred in by at least a majority of the court might be appropriate. But the wisdom of embarking on discussions of general principle (for example, the relevance of subsequent conduct in contract interpretation) where no judge considers the case turns on that principle and there is no clear majority consensus in articulating that principle may be doubted.

There is relatively little publicly available information about how the New Zealand Supreme Court decides cases. Overseas, there is extensive writing on the practices of various courts in pre-hearing conferencing, post-hearing conferencing, and the circulation of draft judgments. There are even some quite specific narratives available of what happened in each of those steps in particular cases. As far as I am aware, there is no publicly available material, even at the broadest level, on the decision-making process of the New Zealand Supreme Court.

Despite what some may think, neither the issue nor the debate is confined to New Zealand. I suspect there is a perception that multiple judgments is a particular New Zealand issue, but a cursory look at overseas writing does not bear that out.74 What requires rather more analysis is whether a multiplicity of concurring judgments is a more common practice in New Zealand?

74 By way of example, Lord Neuberger, in the First Annual Bailii Address indicated a desire to have fewer and shorter dissents: “No Judgment - No Justice” (20 November 2012) The

As I have noted earlier, the traditional English approach and the very early United States approach often led to each judge giving a judgment with relatively little reference to the judgments of the others. We cannot necessarily invoke the “good old days” in a call for reduction of multiple judgments.

While Marshall CJ considered that the new United States Supreme Court derived stature and authority from unanimous judgments, there is another view. It is much harder to suspect that a court acts at the behest of some outside party, perhaps the executive government, if the courts readily show internal disagreement and judges rigorously critique each others judgments. The converse of this is seen in some Eastern European states where the judges are reluctant to meet pan-European expectations that dissent is expressed precisely because they have weak traditions of judicial independence. For them, deciding cases by unanimous judgment, which does not reveal any division of opinion, provides some protection. In the European Union, the European Court of Justice is required to decide a case unanimously and all Judges are required to sign the decision, so that the national original of Judges is not seen as a factor in their judgments.

I suggest it is time for a more open discussion of the process of deciding cases and writing judgments in New Zealand. To date, this has largely been confined to mutterings when any two or more academic lawyers or litigators meet. The mainstream media takes little interest in the working of our courts, except for often tabloid-type reporting of particular judgments. In contrast, the major newspapers in the United Kingdom, Australia and the United States have legal correspondents who, as well as reporting intelligently on individual cases, take a close look at the operation of the courts – judicial alliances, dissent rates, trends, etc. Sadly, the media market in New Zealand is probably too small for that to happen here.

For some time, Canon 19 of the American Bar Association, Canons of Judicial Ethics was as follows:75

It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision. A judge should not

Supreme Court <www.supremecourt.uk/docs/speech-121120.pdf> at [28]. The desire to reduce dissenting judgments had such a dramatic effect that there was a period of eight months (47 decisions) without a single dissent, and only one concurring judgment. See Alan Paterson “A Scarcity of Dissents?” (G March 2014) UKSC blog <http://ukscblog.com/ scarcity-dissent/> .
75 See for example, the 1924 Canons of Judicial Ethics at <www.americanbar.org/content/

dam/aba/ migrated/2011_build/professional_responsibility/1924_canons_jud_ethicspdf.
authcheckdam.pdf>.

yield to pride of opinion or value more highly his individual reputation than that of the court to which he should be loyal. Except in case of conscientious difference of opinion on fundamental principle, dissenting opinions should be discouraged in courts of last resort.

There is much food for thought in that, and it surely applies even more to concurring judgments.

University of Otago Law Festschrifts

Shiels, Trevor J --- "Multiple judgments and the New Zealand Supreme Court" [2016] OtaLawFS 17; The Search for Certainty: essays in honour of John Smillie 212