Eden Crescent

Faculty of Law Annual 2004 - 2005 Eden Crescent CONTENTS

Message from the Dean 01 22 Professor Greenberg is the Legal Research Foundation Distinguished Visiting Fellow From Auckland to Oxford: Farewell 02 2005 to our Julie 23 Professor Jim Evans Retires The Rt. Hon. David Russell Lange ONZ, 03 CH, LLM, 1942 - 2005 24 The Equal Justice Project

Associate Dean for Alumni & Advancement 04 25 2005 Law Postgraduate Programme

New Appointments and Promotions 05 27 Mayo Memorial Funding Boosts Research

Distinguished Visiting Fellow: The Rt. Hon. 08 The Making of Modern Law is the Making E W Thomas of Modern Legal Research

Alumni News in Brief 09 28 Our American Friends

In Memoriam: Kerry Russell McQuoid 12 30 Peter Sankoff graduates with an LLM from (1970-2005) Osgoode Hall Law School

Inaugural Hood Fund Fellow Hosted by Law 14 Student Successes School 31 Auckland Alumni Make Partnership in New Dr Don McMorland Retires from the Law 15 York Law Firms Faculty 32 JF Northey Memorial Book Award Peter Devonshire Wins Distinguished Teaching Award Launch of Te Tai Haruru - The Journal of Maori Legal Writing The Greg Everard Memorial Mooting Competition 33 Faculty of Law Publications and Conference Papers The Auckland University Law Review 16 37 Controlling Persistently Vexatious Litigants - Trajectories of Law in History: The Future 17 some historical notes Behind Us 38 Kerensa Johnston Receives Grant for US Supreme Court Justice Antonin Scalia Research within Taranaki Visits 39 'Exporting' Our Comparative Crim Pro Law Two Kiwis at the International Criminal 19 Course Court 40 New Books Non-Calamity Jane 20 Visit by the Radford University Group Eulogy to Sir Trevor Skeet 41 Visitors and Seminars An Honour for Jock Brookfield 21 Message from the Dean

Universities of Cambridge, Oxford, Jesus College, Cambridge. Our final New York, Columbia, Duke, Virginia new staff member is Professor Jeff and Edinburgh. They succeed others Berryman who has been appointed to a who have completed their postgraduate professorship in the Faculty for a three work, often with distinction. We are year term on a fractional basis; he will proud of them, and of all the others spend the balance of his time at the whose diverse career achievements are Law Faculty of the University of recorded, and of the strong role they Windsor in Canada. play as ambassadors for the Faculty. This year has seen a number of notable It is not only postgraduates who enjoy staff successes. Most recently, David studying overseas. Undergraduates are Williams has been promoted to increasingly taking opportunities to Professor. This is an outstanding study abroad for a semester as part of achievement that has met with their undergraduate experience. With a widespread acclaim as due recognition number of University and Faculty of David's scholarship, teaching and agreements in place, this year students many other abilities. Jo Manning, who Photo: Scott Optican from the Auckland Law Faculty have is a renowned specialist in medical law, studied at the Universities of was promoted late last year to Professor Stuart McCutcheon assumed California, McGill, British Columbia Associate Professor. Peter Devonshire, office as Vice-Chancellor of The (UBC), Toronto, Indiana, Copenhagen, widely recognised as an outstanding University of Auckland in January this Lund, Glasgow and Nottingham. teacher in the Law School, won one of year. Shortly thereafter he visited the Undergraduate visitors to study at three Sustained Excellence in Teaching Law Faculty, met a number of staff and Auckland have come from universities Awards offered as part of the 2004 friends of the Law School and opened in Copenhagen, Glasgow, Hong Kong, University of Auckland Teaching the Marylyn Mayo Rare Book Room. Indiana, Lyons, Singapore (NUS), Excellence Awards. Rick Bigwood This room, a generous gift from Dr Toronto, Uppsala, Stockholm and won the JF Northey Memorial Book John Mayo in memory of his wife, Cornell. In 2006 we will welcome for Award for his book, Exploitative Marylyn, a graduate of this Law the first time undergraduates for a Contracts; Peter Sankoff completed his Faculty, is an important repository for semester from Kansas, Western Ontario LLM at Osgoode Hall and Jock rare reports, texts and statutes and an and William and Mary College. Brookfield was appointed a enduring reminder of the role the Companion of the New Zealand Order Faculty has played in the lives of so Further international links have been of Merit. many erstwhile students. Thanks to fostered this year by the many visitors John Mayo's kindness the Rare Book the Faculty has hosted and by the As always, there are a number of Room will be integrated into the numerous contributions of staff farewells to record. In May this year planning and development of the new members to conferences, colloquia, Professor Jim Evans and Dr Don Law Faculty building due to be research programmes and scholarly McMorland retired. Jim spent some 36 completed in 2009 on a site near the publications. Two of our most eminent years of his working life at the Faculty, ClockTower at the heart of the City visitors this year have been from the researching and teaching in many areas Campus. United States, Supreme Court Justice and always contributing to lively and Antonin Scalia and Professor Jack rigorous debate. Don has spent almost Although details of the new building Greenberg from Columbia University as long at the Faculty, teaching Land have yet to be finalised, the Law (details at pages 17 and 22). In Law and Vendor and Purchaser, Faculty will plan for increased numbers addition, the Faculty was fortunate to although he has lectured part-time since of students in Part I of the LLB as it host one of the first Hood Fund 1992. Both are already sorely missed. moves to open-entry into Part I (from Fellows, Dr Ngaire Woods, of Oxford Finally, our Faculty Accountant, 2007) and as it contributes to the University, and to have had an Jonathan Taylor, leaves us next month General Education papers offered from outstanding range of participants in our for a new position with a commercial 2006 as part of the University's degree seminar series and in the Masters firm. Jonathan has been an excellent restructuring programme. However, programme (details at pages 41-44). colleague and, while we wish him all entry into Part II of the LLB will the very best for the future, we are very generally remain limited to 300 This year the Faculty welcomed a sorry to see him go. students with strong academic marks number of new staff. Three alumni across their Part I year or a prior degree have returned to join the staff after As this is the last Eden Crescent in (as at present). postgraduate study. Amokura Kawharu which I shall write a Dean's Message, I and John Ip studied at Cambridge and would like to record my thanks to all The fine calibre of our student body is Columbia respectively and are now my colleagues and friends in the underlined again this year in many of settling in to full-time academic life. Faculty, wider University and legal the following pages. It is a source of Richard Ekins is the third alumnus to profession and to students, past and great pride that so many students opt to return. He has completed his BCL and present, for their support and pursue postgraduate legal research, is now studying for his DPhil at friendship. It has been an honour to be often at world-renowned universities Oxford. Thus Richard currently only Dean of such a fine Faculty. I will and often with scholarship assistance. has a fractional position at the Law treasure the memories of my time here. This year University of Auckland School. In the middle of the year, Chris graduates will be studying at the Hare joined us from a Fellowship at Julie Maxton

01 From Auckland to Oxford: Farewell to our Julie

Julie Maxton arrived in Christchurch in Council). She has been a member of Watts, who was Deputy Dean for 1978 to begin her law teaching career the Legislation Advisory Committee almost the entire period of her at a tender age, fresh from studying law since 2001. Deanship and who acted as Dean for at University College, London and the periods Julie was otherwise completing the bar finals in London. The same record of service can be seen engaged on University business. Peter's After seven happy years in in the University. Right from the analytical mind, efficiency, directness, Christchurch, Julie followed her beginning of her career, Julie has sat on work ethic and utter decency are husband (Jim Carson) to Auckland, and University committees. Legal issues are legendary in the Law School. Together, we at the Law School were the lucky often close to the surface of this work the administrative tag team of Maxton beneficiaries of that move. Lateral and consequently lawyers do more than and Watts were indomitable, able to movement of teachers between New their fair share on such committees. On wrestle any problem to the ground. I Zealand law schools is uncommon, and occasions Julie's legal abilities have cannot remember, in my time in the the University of Canterbury's been called on more directly by the law school, such an impressive considerable loss was our major gain. University. For example, last year she administrative team effort. coordinated the University's case in the At Auckland, Julie rose rapidly up the High Court challenging the Tertiary It is difficult for outsiders to gauge the academic ranks: Senior lecturer in Education Commission's wrong-headed vitality of the Law School, and so the 1987, then Associate Professor and decision to compare the research Dean, as the “public face” of the Law Professor in quick succession in 1993 grading of New Zealand academics School, is often taken as a barometer of and Dean of Law from 2000 to the end with those elsewhere based on different the Law School's health. Julie's of 2005. In common with several other methodologies. The University won the professionalism, intelligence, hard colleagues (Peter Devonshire, Jane case (The University of Auckland v work, thoughtfulness and integrity have Kelsey, and Rosemary Tobin), Julie Tertiary Education Commission [2004] won the Law School many friends and completed her doctorate while teaching 2 NZLR 668). assured the legal world that Auckland full-time. No easy feat, and not for the Law School is in excellent heart. faint of heart. Demonstrating her Julie's highly successful five-year stint versatility, Julie's PhD thesis, Contempt as Dean of Law has been interrupted It will surprise some to learn that Julie of Court, was completed in 1990. several times by calls to serve the took on the job of Dean with some wider University. At these times of reluctance. When she took up the Julie Maxton is the complete legal institutional need, characteristically, Deanship at short notice in 2000 it was academic, excelling across the entire Julie has put aside her own interests not as clear to her, as it was to others, range of activities. She has an enviable and heeded the call of duty. More than that she would enjoy and prosper in an international reputation as an equity a year of her term as Dean has been administrative role. She soon scholar, having published widely in given over to the Deanship of Graduate discovered, I think, that all the skills New Zealand, Australia, Canada and Studies and two stints as Acting Deputy that make her a great teacher, advocate, the U.K. Julie is also a consummate Vice-Chancellor, the highest academic scholar and colleague, also made her a law teacher, and in her career has administrative position in the fine academic administrator and leader. taught across a remarkably wide range University. She discharged these new And so, after five years as Dean and of subjects; including equity, roles in an exemplary manner. twenty years as a colleague, we are to commercial equity, commercial law, lose her to the plum administrative estate & tax planning, evidence, The Dean of Law has many audiences position at one of the world's great advanced evidence, income tax, and many roles, and each Dean places universities, the Registrar-ship of the property law, succession, theories of her or his unique stamp on the job. In University of Oxford. obligations, agency, restitution and the modern University it is simply not legal theory. She was awarded the possible, if it ever was, for the Dean to Julie leaves us with the thanks, inaugural University of Auckland do everything that the University, our admiration and respect of her Award for Excellence in Teaching in colleagues and our various colleagues and many students. On 1993. Julie takes a genuine interest in communities require. Choices have to behalf of the Law School community, her students and follows their careers be made, and some tasks delegated to we wish her every success at the with keen interest. For many, she is the colleagues. Julie's focus has been University of Oxford, and count the first port of call for career advice. outward, reaching out to the rest of the Oxonians lucky to have her. We now University and to the legal community. know exactly how the Cantabrians felt Julie has very strong and longstanding Her high standing as a legal academic in 1985! Thanks to Jim and their son links with the legal profession. For and her ease with people from all walks James for their total support of Julie example, she has had a major of life - combined with her shrewd during the demanding years of the involvement in presenting at New judgment, wisdom, and ability to see deanship. Zealand Law Society “road shows” on the big picture - have made her the topics such as damages, domestic perfect ambassador for the Law School, It is the privilege of an institution to property, equitable remedies, estate and hence much sought after within bask in the reflected glory of its planning, wills, and constructive trusts. and without the University as a accomplished alumni and colleagues. This is in addition to membership of a speaker, committee member, chair, The warmth of that reflection number of committees at national and mentor and confidante. Julie is a team compensates a little for the loss of “our Auckland law society levels. Moreover, player, with the ability to bring the best Julie”, a great teacher/scholar, leader, Julie has practised as a barrister since out of the rest of the team. colleague and friend. the early 1980s, and has appeared as counsel at almost every level of the In all this, Julie was ideally Mike Taggart court system (including the Privy complemented by her friend, Peter

02 The Rt. Hon. David Russell Lange ONZ, CH, LLM, 1942 - 2005

From a eulogy prepared for a public he was very hard up. At no time in the And he matched them to ideas and to memorial service. next 40 years would he be exactly figures of speech - aphorisms, “flush”. metaphors, alliteration, whatever. Here In 1970 there was a minor realignment was a potentially very subversive joker. of those planets above central Auckland “Up north” in the late '60s, and at Witty too. A less-than-ideal-citizen in which affected the teaching and the Kitchener Street in the next decade, the making. Within two weeks he had practise of law. Indirectly it would lead David's leading bugbear was the Police (effortlessly) reversed our roles. to New Zealand's most bumpity Offences Act 1927. He vowed to see it Thereafter I listened. He orated. political decade, the '80s, and to the repealed. I heard him condemn it Forty-three years later that still occupancy as Prime Minister of the before a particularly grizzled obtained. country's most eloquent and Stipendiary Magistrate - a man who charismatic politician. Yes, in 1970, a defied casual admiration. It is, said the As we know, David gave up the new firm, Nixon and Lange, was advocate, “New Zealand's magna carta practise of law in 1977. He had had established. of social hygiene, the Establishment's enough of the inferior criminal court. scourge of the less-than-ideal-citizen, “What happened there was a charade. David Lange, a 26 stone, highly the scourge of him or her, for what he The criminal law was a fraudulent successful tutor in the Law Faculty is, not for what he has done.” “That's a construct and was afforded departed to the city practice and Allan matter for Parliament, not for this unwarrantable majesty in the eyes of Nixon came “up the hill” to a Senior court”, the beak said (correctly). “Get the public… I knew I could never go Lectureship in Criminology (while yourself to Wellington Mr. Lange.” In back.” So he acted on that old engaging, when need and inclination 1977 he did. And in Opposition, as Stipendiary's adminicle and went conspired, in Magistrates Court work in Justice spokesman, he helped the sideways, and in a sense, up (or down) the firm). Minister, Jim McLay (and others on the to Wellington as the Member for fine Select Committee), to put down Mangere. They made an odd couple, in an odd that monster. office. Like something out of Dickens. Obviously David's more enduring and Nixon, a conscientious objector to war, Earlier in his two phases of law powerful contributions to law were was frail-looking, bowed, wry, self- practise his clients were society's made in Parliament - as Prime Minister effacing - an older Bob Cratchitt. predictable casualties: the browbeaten and in Cabinet portfolios and, after he David was straight out of The Pickwick and bullied (and he knew about resigned the leadership, as Attorney- Papers, though larger than fiction. bullying), the under-educated, the General. There was homosexual law mentally frail, the readily tempted, the reform and the tightening of the rape The two men owned some things in young and impulsive. There were ship- laws, the Criminal Justice Act, the common. They had outsized girls, a male prostitute whom he, famous “nuclear-free” legislation, the consciences and intellects, a devotion somehow, successfully defended in the Bill of Rights, an avalanche of S.O.E to seeking a just and good society, the Supreme Court, and demi monde enactments (of which he may not have inability to take themselves over- characters such as Too Fat's Missus and wholly approved), a new Labour seriously, and an intense concern with Trefor, who occasionally bombed Relations Act and the groundwork for their clients, and, very little idea of solicitors' cars. the Resource Management Act. As how to make money out of them. Minister of Education he introduced the Defending the lower-orders in court principle of self-management of Years later, Lange said, “Rolled up, was only one-third of the venture. schools. There was a great wadge of Nixon and I made three-and-a-half First, David had to ensure they actually deregulatory legislation which, Rumpoles and without the earning appeared. Second and third, if they got ideologically, he would have disliked capacity to keep half a Rumpole in fines or probation he had to ensure they but, in office, he made a good fist of claret.” did not disappear. He told me of a promoting. rural youth aged 16 who, again, had Allan, the “half Rumpole” (physically), succumbed to the charms of his In office, David revealed an spent five or six years at the Auckland girlfriend aged 15; an offence. The astonishing and quick mastery of Law School as a drôle critical Magistrate bellowed at the lad “Come complex issues. He, and Treasury commentator on crime, the place where before me again - ever again - and I personnel, may well have saved New David had recently graduated LLM - shall have you INCARCERATED”. Zealand from the indignity, in the first with such high marks in two papers The young fellow rushed from the weeks of the new government, of that the external assessor was courtroom clutching his lower having to go, cap-in-hand, to the IMF. reactivated by the Dean (one, graded at abdomen. He was pursued by the His international vision was large and 90, came back upped to 93). The bailiff and by David (always light on his anti-nuclear policy was brave - and former tutor, Lange, launched himself his feet) waving a copy of the Shorter brilliantly defended at Oxford in 1985. again (he had previously practised in Oxford English Dictionary. Even greater courage was shown over Kaikohe) with chiefly Magistrates the last years of his physical pain. Court pleading. Then, a father of two, When I encountered David Lange as a law student in 1962, he had more For four or five years David had words than anybody I have ever met. presided over a social-economic

03 transformation unprecedented in our “In the end,” he said, “you know that if gentlemen, I have not read it,” he said. history. Most commentators would you were forever serious in this job you “My profound apology. Last night I now agree it was essential social could go mad.” Well, he wasn't. And was running a bath for my small medicine. As his second term he didn't. daughter and trying to scan the book commenced he wondered-out-loud if it when it fell into the bath water. AND was time to pause and reflect - “to have Serious? David Lange? Sometimes he LOOK AT IT NOW” [a pause] a cuppa”. Just over a year later his tried hard to be. But it would last only “NEVERTHELESS ladies and position became untenable and he a matter of seconds. Remember his gentlemen,” he boomed, “This is a resigned in favour of the former Law handover of the leadership to Sir unique occasion. This is the first time Professor, Geoffrey Palmer. Geoffrey Palmer (“Well, thank you for in history that a book has been floated all those compliments, Geoffrey. I think before it was launched.” David loved words - he was ecstatic I'll stay.”) Remember the persistent orating them, writing them. Language journalist along the corridor who stuck It brought the house down. So have and power are familiar bedfellows. a mike in his face and beseeched him the hundreds, the thousands, of his When “in power” one sensed David “Prime Minister. Just a word. Just one speeches over fifty years. I'm sure I quite liked eloquently exercising it. Yet word.” And he shot back, “Wombat.” can speak for all the lawyers and I think he always mildly mistrusted judges and law teachers in saying: power. “The truth is,” he said, “that A personal note. A few years ago David - in 1977 you were a great loss Prime Ministers are not as powerful as David agreed to launch an unspeakably to the criminal law. But what a huge, some of the public imagine. Nor are serious book for me. He arrived at the exciting gain that was to your country Ministers.” He went on “As Minister of venue drawn and ill. I said, “Don't do and to the world. And to the English Education I received a number of it. I'll ring your doctor.” He said “No. language. Rest in peace, dear eloquent, letters from schoolchildren asking me There's a big crowd there. An audience wickedly-witty friend of the people. to sack their teachers. To the child, is my best medicine.” He plunged his David, the last word, as ever, is yours. they started with a cunning reference to hand into a cavernous pocket, pulled Wombat! their support of my anti nuclear policy. out my book and held it aloft. It was Bernard Brown Now the simple fact was our system of unrecognizable. The cover was government sadly but sensibly does not blanched. The pages were stuck fast. The Faculty's sympathy is extended to afford any Minister that power.” “Alas, your Honours, ladies and Margaret and the family.

Associate Dean for Alumni & Advancement

Scott Optican with Bonnie Kong (BCom/LLB 2003) at the September 2005 Auckland University alumni dinner in Hong Kong. Senior Lecturer Scott Optican was recently appointed to a new role as Associate Dean for Alumni & Advancement at the Faculty of Law, University of Auckland. Scott has been very active in alumni and advancement work for the past year. In September 2004, he accompanied Professor Julie Maxton, the Dean of Law, and other University officials to a series of Auckland University alumni dinners that he helped organise in Singapore, Malaysia and Hong Kong. Scott has also been instrumental in running the 2005 Annual General Appeal for the Law School, and recently returned with Professor Maxton from advancement and alumni trips to New York City and Washington, DC. He is covering two University-level committees related to alumni and advancement and has begun to organise fundraising and alumni initiatives for both the University and the Law School. Scott is expected to play an important role in various advancement and alumni projects soon to be undertaken by the Law School in relation to the building of its new 04 premises on the City Campus. New Appointments and Promotions

John Ip

John Ip, a recent graduate of the University of Auckland Faculty of Law, rejoined the Law Faculty as a Lecturer in 2005.

John graduated in 2001, and spent two years as a Judges' Clerk at the High Court in Auckland. During this time he maintained a close relationship with the Law Faculty, primarily through his work as a tutor, and as a committee member of the Legal Research Foundation. In July 2003, John departed for the United States to further his studies in his main areas of interest: constitutional law and criminal procedure.

Jeff Berryman As part of his Fulbright scholarship, he spent his first month in the United States Jeff Berryman has been appointed to a participating in the Foundations of American Professorship in the Faculty for a three-year Law Programme at Georgetown University term on a one-fifth basis. Jeff will continue Law Center, in Washington DC. Upon to spend the rest of his time at the Law completing this programme, John headed to Faculty of the University of Windsor in New York to take up his studies at Columbia Canada. Law School. In May 2004, John graduated Richard Ekins from Columbia with a Masters in Law degree, and was named a 2004 James Kent Jeff graduated LLB(Hons) from Auckland in Scholar for his academic achievements (this Richard Ekins has been appointed to a 1977, and completed an MJur the following is an honour awarded to the top 3% of the Lectureship, but on a fractional basis whilst year. He was then a Judges' Clerk at the graduating class). he completes his DPhil degree at Oxford. Auckland High Court, and a lecturer at Massey University for a short time, before Following his graduation, John worked for Richard was a star student here at Auckland, heading to Dalhousie University in Canada six months at the International Justice from which he graduated LLB(Hons) in where he completed an LLM. He has been Project, an NGO that deals with the death 2002, and BA(Hons) in 2003, majoring in on the staff at Windsor Law School since penalty and litigation concerning the Political Studies. He was a Senior Scholar in 1981, and was Dean there for five years in Guantanamo Bay detainees. His work Law and the winner of the Robert Menzies included research for lawyers representing the early 1990s. Prize in Politics. He was then a Judges' Clerk various detainees, and helping with the at the High Court in Auckland for two years, drafting of US Supreme Court amicus (friend Jeff's research specialties are in contract law of the court) briefs. while continuing to tutor in both law and and in private law remedies. He is the author politics at the University. of a text on equitable remedies, and of the In December 2004, John briefly returned to leading Canadian casebook on remedies. His New Zealand to interview for the lecturing Richard proceeded to Balliol College at long list of articles includes publications in position at the Law Faculty, and a number of Oxford on a Commonwealth Scholarship, England, and the United States, as well as government positions in Wellington. In the from where he graduated with a BCL with Canada, New Zealand and Australia. He has end, however, he chose to return to his Distinction, and won the Herbert Hart Prize served as editor in chief of the Windsor “home field”, the Auckland Law Faculty. for the top student in Jurisprudence in 2004. Yearbook of Access to Justice. Photo: Scott Optican He is now being supervised for his doctorate by Professor Finnis on the subject Along with a number of important university 'Legislative Authority and Practical roles at Windsor, Jeff has also for many years Judgement'. He is supported by a Foundation served on the Board of Directors of the for Science and Technology Top Achiever Windsor Symphony, including as President, Doctoral Scholarship and a LB Wood with roles as Chair of its Artistic Planning Travelling Scholarship. Richard has already Committee, and negotiator of agreements published a number of articles, including an with its musicians. He and his wife Carol article in each of the Law Quarterly Review, have two teenage children. the European Human Rights Law Review and King's College Law Journal. At Auckland he has been teaching in the LLM programme, and this year is teaching a Richard's teaching and research specialties course in Remedies. are jurisprudence and statutory interpretation. Peter Watts Peter Watts

05 In 2003 Amokura left a position as in-house unfortunate customers, he decided that counsel at Vodafone to attend Cambridge academia might be a “gentler” pursuit. Chris University where she completed her Master was appointed to a fellowship at Jesus of Laws (LLM) with First Class Honours. College, Cambridge, in 2000, which he held Despite the trials of living above an off- until joining the Auckland Faculty this year. licence premises and consequently having to deal with intoxicated patrons, Amokura was His research interests include general awarded the Rodwell Prize by Emmanuel commercial and banking law, particularly the College for her academic achievements. international aspects of these subjects. Chris is currently completing a book entitled Amokura's teaching in the Faculty currently “Documentary Credits: Law & Practice,” to includes stints in Land Law and Personal be published as part of the LLP Commercial Property and in 2006 she will teach a course Law Library. on Commercial Arbitration. Her wider research interests include international law He enjoys swimming, but is strictly a and trade. spectator when it comes to other sports. Peter Watts Outside of the law Amokura's interests include travel, tramping and astronomy. Amokura claims to have climbed Ben Nevis in Scotland, although this cannot be verified since it was snowing too heavily for photographic evidence. She was recently seen buying trinkets in Morocco, and has travelled extensively throughout Europe, North and South America and Asia. During a trip to Prague, Amokura was hauled off a train by Czech officials who suspected her of passport fraud. It seemed that her youthful Ngapuhi/Ngati Whatua looks belied the age of the person to whom the passport had been Photo: Scott Optican issued! Needless to say, all was above board and Amokura lives to tell the tale, to the relief of her new colleagues. Amokura Kawharu Khylee Quince Given the longstanding Kawharu whanau connection to the University of Auckland, it may have seemed inevitable that Amokura Kawharu would join the teaching staff of the Faculty of Law eight years after graduating from here with a BA/LLB (Hons) conjoint in 1997. Amokura's father, Sir Hugh Kawharu, is an Emeritus Professor of Maori Studies/Anthropology, and her elder sister, Photo: Godfrey Boehnke Merata, worked at the University's Sir James Henare Research Centre following the Joanna Manning completion of her DPhil at Oxford. The family's academic credentials also extend to Joanna Manning has received a richly Amokura's late mother, Lady Kawharu, who deserved promotion to the rank of Associate as well as being the first Maori woman to Professor. graduate in Fine Arts at the University of Canterbury, also taught in the Maori Studies Jo completed her undergraduate arts degree Department here at Auckland. in English, and her law degree with honours at the University of Auckland in 1980. After Amokura left school at the end of the sixth a period in legal practice as a prosecutor at form to save the world, taking up an Christopher Hare the Crown Solicitor's Office in Auckland, she internship at Greenpeace and becoming a completed an LLM in 1984 at The National vegetarian, before making her way to The Faculty has been fortunate in securing Law Center at George Washington Auckland University to study politics and Christopher Hare as a Lecturer in contract University in Washington DC, USA. This law. Following her graduation, she worked law and commercial law. was followed by a further stint in legal in commercial law teams at Chapman Tripp, practice in commercial and civil litigation. and also Gilbert & Tobin in Sydney. Her Chris grew up in the Northwest of England. areas of expertise were corporate and He read law at Trinity College, Cambridge, In 1986 she joined the Faculty of Law at the securities law, including involvement in and spent a year at the University of Poitiers, University of Auckland. Although she several ASX listings, venture capital France. Following this, he completed commenced her academic career with a transactions and mergers and acquisitions. postgraduate studies at Harvard Law School strong research and teaching interest in tort While in Sydney Amokura maintained a pro (LLM) and Oxford University (BCL). He law, in 1997 she changed direction and began bono practice, assisting Aboriginal groups then spent several years in practice at a to specialise increasingly in medical law. Her and ParaQuad, the paraplegic and commercial law set of chambers in London. interest in this area grew out of the Minister quadriplegic association of New South Following a case involving a particularly of Health's appointment of her as the Wales. aggressive bank and its particularly consumer representative on the Medical

06 Practitioners Disciplinary Committee in tango whenua': The Native Land Court 1864- David Williams' professional interest. For 1986. She served in this role until 1999, 1909, Huia Publishers, Wellington, 1999. example, my own Ngati Whatua community gaining a fascinating insight into the Not with standing his formidable university at Orakei has had to grapple in recent years workings of disciplinary tribunals in the background, Professor Williams chose not to with the philosophical and practical health professions. restrict himself to academia for some ten problems of balancing relationships years prior to 2001. In this period he between authority and the individual in the Jo has published numerous articles in New maintained active links in the wider market place on the one hand and within the Zealand and international journals on a community as a barrister and as an tribal group on the other. It is here that we wide range of topics in medical law and independent researcher, while lecturing part- have benefited greatly from David Williams' ethics, many on issues of consent to time at Auckland University. Concerns friendship and understanding of the medical treatment. Her recent work has beyond the law had also led him to being bicultural tensions and contradictions that been on developments in informed consent ordained in the Anglican Church in 1986, afflict tribal development today. under the Code of Patients Rights. When and taking a Diploma in Theology at Oxford pressed to explain why she has developed a year later. It may be said that the role of a Professor such a fascination for this area of the law, demands leadership. If not self evident, it she comments that it is profoundly Recognition of Professor Williams as a has also to be admitted that leadership is not important, touches everyone's lives at some scholar of standing has resulted in his being a ready companion for scholarship. The point in a way that is deeply personal, and called upon by both Victoria University of scholar will have to shoulder the deals with the essence and boundaries of Wellington and the University of Waikato to professorial burdens of administration, what it means to be human. It is also a assist in supervision and to act as an external negotiation and advocacy, not to mention hugely dynamic area of law with changing examiner of law doctoral theses. And the teaching, examining and mentoring of power relations between patients and recognition lies beyond these shores as well. students, before turning to his or her papers. professionals. For instance, this year alone, the Centre for To reconcile such conflicts of ambition and Comparative Legal History at Macquarie responsibility requires clear vision and As well as her teaching and research, Jo is University, Sydney, invited him to become a strength of character. While David Contributing Editor for Health Care Law to research affiliate, the Consortium on Williams has a natural level of confidence the New Zealand Law Review, has served in Democratic Constitutionalism at the based on past achievements, it is one other roles in the medical disciplinary University of Victoria, BC, sought his tempered by consideration for others, just as sphere, and has most recently been membership of its interdisciplinary and his enterprise is tempered by consistency appointed as the lawyers representative to international group of scholars, and, not and balance. He will be equal to his new the National Ethics Advisory Committee. least, the Australia and New Zealand Law challenges. and History Association asked him to host its Jo, whose personal warmth, vitality, 2005 conference in Auckland. Kia ora mai ra e te tohunga humour and keen intelligence have enriched Indigenous community development is a her many students over the years, is field that has, perhaps inevitably, attracted I. H. Kawharu universally regarded with enormous affection and respect by her colleagues. What is perhaps most admirable about her professional success is that it has been achieved in addition to her very active role as mother to three beautiful children. Julia Tolmie David Williams

News of the University's recent promotion of the former Rhodes Scholar, Treaty of Waitangi specialist and community advocate to a personal chair will be received with wide approval. Professor Williams has an acknowledged reputation as a leading scholar in Treaty of Waitangi issues through his publications, consultancies, and lectures in New Zealand and abroad.

His first degrees, BA, LLB, were earned at Victoria University of Wellington (1967 - 1969) followed by the BCL at Oxford University (1971). A fruitful association with Tanzania, East Africa, over a number of years resulted in the award of a PhD in legal history from the University of Dar es Salaam (1985). Legal history is a subject to which he has devoted a great deal of his energies - his “personal passion” as he puts it. Thus among his major publications are such titles as Crown Policy Affecting Maori Knowledge Systems and Cultural Practices, Waitangi Tribunal, Wellington, 2001, Matauranga Maori and Taonga, Waitangi Tribunal, Wellington, 2001 and 'Te Kooti Photo: Scott Optican

07 Distinguished Visiting Fellow: The Rt. Hon. E W Thomas

the “social entrapment” of domestic violence. These include cases where the criminal justice system has failed to send a clear message to the perpetrators and victims of domestic violence that it will not be tolerated, either by partially excusing the perpetrator's actions (R v Tepu, 1998, High Court, unreported judgment) or by visiting negative repercussions on the victim's help seeking actions (Police v Kawiti [2000] 1 NZLR 117). It is also possible to find cases minimizing the protections available to such women by, for example, effectively dismantling mandatory arrest policies for the police in the context of domestic violence (see Attorney-General v Hewitt [2000] 2 NZLR 110).

Against this background Ted's judgments consistently stand out, not just in New Zealand but in Australasia, as examples of judicial reasoning at its best. They are well reasoned in legal principle, but they are also well researched and realistic about The Rt. Hon. E W Thomas is visiting the Law School as a the constraints and pressures of many women's lives. One Distinguished Visiting Fellow. Ted joined the Faculty in example will suffice. In Ruka v Department of Social Welfare August 2004 and his appointment will last until August 2006. [1997] 1 NZLR 154 Thomas J (in the majority) held that a woman in an extremely violent relationship which traversed Ted was a Judge of the High Court in Auckland for five years 17 years was not in a “relationship in the nature of a and a Judge of the Court of Appeal for six years before marriage” with the perpetrator. Accordingly, her various reaching the compulsory retirement age of 68 in 2002. He was convictions for defrauding the social welfare department by also appointed in 1997 as one of Her Majesty's Privy drawing welfare benefits whilst living in such a relationship Councillors. Currently he is an Acting Judge of the New were quashed. In a judgment which fearlessly canvassed the Zealand Supreme Court. social science literature on the phenomenon and impact of domestic violence, itemized Ms Ruka's experiences in great Prior to his appointment to the bench Ted had a stellar career detail, and examined the history and wording of the social in practice, which included an impressive resume of service to welfare legislation in question, Thomas J arrived at this the profession and broader public, as well as honours for his conclusion for two reasons. First, because Ms Ruka lacked performance in the legal profession. In 2002 he was made “the requisite mental and emotional commitment to the Distinguished Companion of The New Zealand Order of relationship for it to be properly described as being in the Merit. nature of marriage. She simply remained in the relationship because she had been battered into a state of terror and was In addition, throughout his career as a lawyer and judge he has powerless to do otherwise.” Secondly, because “any published prolifically on an extraordinary range of legal assumption of financial interdependence or responsibility in issues. Thus, he has published articles or produced papers on this case was totally lacking.” The perpetrator not only failed issues in town planning, corporate law, administrative law, to support her or their child but, typically, actively sought to constitutional law, torts, and criminal law, to name only some prevent her from having any money. Occasionally he even of the areas he has traversed. Following his retirement from took the benefit money she was depending on from her. For the Court of Appeal, Ted attended the Research School of other cases in which Ted has demonstrated an empathy for Social Sciences at the Australian National University in issues of concern to women, see: R v H [1997] 1 NZLR 673 Canberra. While there he wrote a book entitled: The Judicial (analysis of the recent complaint rule in rape cases); W v Process: Realism, Pragmatism, Practical Reasoning and Attorney-General [1999] 2 NZLR 709 and M v H (1999) 18 Principles, which is being published by Cambridge University FRNZ 359 (limitation period in cases of childhood sexual Press in September of this year. abuse); Daniels v Thompson [1998] 3 NZLR 22, at 73-77 (effect on women of precluding civil claims for exemplary For myself, one of the strongest testaments to the rigorous and damages where wrong also constitutes criminal offending); wide ranging nature of Ted's intellect, as well as his own Attorney-General v B [1992] 2 NZLR 351, at 354-356 and personal integrity and courage, has been the contribution that 359-360 (cross-examination of complainants); and Bottrill v A he has made to women's standing in the legal profession and [2001] 3 NZLR 622 (whether exemplary damages recoverable to the realistic recognition of their life experiences in the by women in respect of misreading of cervical smear slides development of legal doctrine. where pathologist “inadvertently” grossly incompetent).

It sometimes appears as though many of New Zealand's finest Ted's experience as a Judge has been of tremendous benefit to judges, whilst well versed in legal logic and principle, struggle Auckland University law students. He has been generous in to realistically appraise the social context in which the teaching classes, giving talks and actively participating in the principles that they are applying will operate and/or what the life of the Faculty. In particular, he has devoted time to repercussions of their decisions will be on the lives of those helping students prepare for international moot court who are least empowered in the community. It is thus possible competitions in Australia and the United States and, as noted to find cases, for example, which could be viewed as below (see page 24), is the patron of the Equal Justice Project. operating to support what James Ptacek (Battered Women in The Faculty of Law has been delighted to have Ted as a visitor the Courtroom: The Power of Judicial Responses, and is grateful for his many contributions to the Law School. Northeastern University Press, 1999 at page 10) has labeled Julia Tolmie

08 Alumni News in Brief

The following bulletins note some of awarded the William Richmond Spencer Mason Trust Travelling the recent achievements of the alumni Scholarship by the University of Scholarship in Law. of the Faculty of Law, University of Virginia. It is awarded to a second year • Kerry Tetzlaff (who has been Auckland, not profiled elsewhere in MBA student at the University of Acting Postgraduate Manager at the this magazine. They represent only Virginia who has demonstrated Law Faculty) has been offered a place those that have come to the attention of academic excellence and an interest in to study for a PhD at Cambridge individual members of the Faculty of entrepreneurship. Justin's academic University, commencing in October of Law. If you are a graduate of the record made him eligible for the this year. She has the Spencer Mason Faculty of Law and would like to tell scholarship but it was his “interests, Travelling Scholarship and the Yvonne us what you are up to we would be personal attributes and commitment to AM Smith Charitable Trust delighted to hear from you. Please the Darden [the name of business Scholarship. She completed a BA/LLB contact Julia Tolmie school at the University of Virginia] at Auckland and is currently ([email protected]). community that allowed [him] to be researching and writing her last paper singled out.” for her LLM. Several of our graduates have been • Justin Graham is going to St accepted into postgraduate programs Johns College at the University of and, in some cases, have been awarded Cambridge. He has a Spencer Mason scholarships to pursue their study. The Travelling scholarship, an Elliott Davis Faculty congratulates the following Memorial from Kings College, and a former students: Chevening Bursury. • Rohan Havelock is enrolled • Bianka Atlas starts an MSc in in an LLM at the University of Childhood Studies at the University of Cambridge, specialising in Edinburgh in September of this year. corporate/commercial law. He has won She says: a FWW Rhodes Memorial Scholarship “This is an interdisciplinary course, (Auckland Grammar School), a drawing on disciplines such as law, Spencer Mason Trust Traveling psychology, social work and sociology. Scholarship, and a Rotary It provides an advanced understanding Ambassadorial Scholarship. of how theories, policies and practice • Bridget Jang has been conceptualise “childhood” and accepted into the Duke Law School opportunities for critical review and LLM programme. She is currently analysis of how well they meet the clerking at a law firm in Paris. Jimmy Liao needs and rights of children. It provides • Tim Jenns, currently the opportunity to develop skills in practising at Clifford Chance in The Law Faculty is proud of the research and consultation with children London, has accepted a place in the number of our students who have and young people. This opportunity - to BCL programme at the University of recently completed post-graduate study. engage and develop research skills with Oxford. Some have had marked success in children and young people - is one of • Nina Khouri has been doing so: the things that really drew me to this awarded a Vanderbilt Scholarship (full particular programme.” tuition) at NYU Law School, where she • Matthew Conaglen, now Until then Bianka is contracting as an will study for an LLM, specializing in teaching at the University of analyst for the Family Team at the dispute resolution theory and practice Cambridge, has won the Yorke Prize Ministry of Justice in Wellington. with a focus on international law. She for his doctoral thesis. • Justin Drake, who is half-way has also won a Fulbright Scholarship, • Richard Ekins was joint through his MBA at Virginia, has been which in her case includes the winner of the Herbert Hart Prize in Fulbright Alumni Award for the most 2004 for the top student in Oxford promising Fulbright in this round. She University's Jurisprudence & Political will also be financially assisted by a Theory course. He was also the winner Spencer Mason Trust grant and a of the Australian Society for Legal scholarship from the PEO International Philosophy's Annual International Peace Fund. Essay Competition. • Jimmy Liao will be doing an • Sacha Judd graduated with an LLM at Columbia University in New LLM from London University, and was York. He will specialise in corporate awarded the prize for the Best finance, corporate governance and Corporate Law LLM in 2004. mergers and acquisitions, areas in • Gareth Kayes was awarded which he practises. an MPhil with Distinction from the • Sarah Raudkivi will be doing University of Oxford. an LLM in General Studies at NYU, • Jessica Palmer, formerly studying a combination of Rickett, has just been awarded First finance/corporate/commercial/internati Class Honours for her Cambridge Nina Khouri onal law. She has been awarded a LLM.

09 • Alex Penk is one of five (specializing in Scandinavian cuisine). Appeal, Justice Randerson, Chief Judge scholars to win a Pegasus Scholarship See: www.finds.com.hk. of the High Court, and Judge Russell in Cambridge. These are prestigious • Louise Moor completed her Johnson, Chief Judge of the District awards. In Alex's own words: “The LLM at the University of Michigan and Court. In addition, Judge Graeme Pegasus involves three months of then stayed on as a Visiting Research Colgan, former president of the placements in barrister's chambers in Scholar to do work on refugee law. She University Alumni Association, now London, working for senior barristers, also worked with A.W.Brian Simpson The University of Auckland Society, going to court with them, and getting on jurisdictional issues of the ECHR. has been appointed Chief Judge of the time to talk to judges about their work, She has started work in Dublin with the Employment Court. Short profiles of etc. It includes trips to courts in Irish Refugee Council, a small NGO, as Judge Johnson and Judge Randerson Edinburgh and Belfast to see how their Legal Officer. She is in charge of follow: things are done there as well. It pays the legal team. accommodation and expenses for its • Penelope Nevill has been • Judge Johnson has been a duration.” offered a Law Fellowship position at District Court Judge since 1993. He • Elizabeth Steer, Simon Downing College, Cambridge. It is a served as Crown Counsel in Hong Bridges and Craig Ulyatt have each College teaching position. Kong from 1974 to 1977, barrister sole graduated with a BCL from the • Sai Novoti is working in in Auckland from 1982 to 1986, and a University of Oxford. New York as Legal Officer to the partner in Wynyard Wood from 1986- Permanent Mission of Fiji to the United 1993. He is also a former Vice We also congratulate alumni on some Nations. President of the Criminal Bar of their outstanding professional • Alyssa Phillips, a graduate of Association. In addition to serving as successes: 2002 who is currently clerking for Executive Judge for the Northern Justice Gault of the New Zealand Region and as Judge Advocate for • Nick Francis, who graduated Supreme Court, has been awarded the Courts Martial, he has, on several in 1997 LLB(Hons) BCom, moved to Cleary Prize for 2004. The Cleary occasions, acted as Chief District Court Hong Kong last September to work Memorial Prize 1980 is awarded Judge in the incumbent's absence. with DLA Piper Rudnick Gray Cary, annually by the New Zealand Law • Justice Randerson graduated doing maritime and trade litigation. Society to a lawyer of less than three from Auckland University with an Prior to moving to Hong Kong, Nick years' standing in the profession who LLB(Hons) in 1972 and practised with worked for three and a half years in shows the most promise of service to, Wallace McLean Bawden & Partners, Shanghai with Sinclair Roche & or through, the legal profession. The which later became Kensington Swan. Temperley, and before that had a year prize was instituted in memory of Sir He commenced practice as a barrister off in Japan doing karate. Timothy Cleary, past president of both sole in 1989 and was appointed a • Diana Hartley, who graduated the Wellington District and New Queen's Counsel in 1996. Justice from Cambridge University with a Zealand Law Societies and a judge of Randerson has also sat from time to LLM in 2002, is currently in London the Court of Appeal until his death in time in the Divisional Courts of the working as a legal advisor for the UK 1962. Court of Appeal. Law Society. • Megan Schrader (nee Cox) is • James Hartley is working for living in Frankfurt, Germany, and The Faculty warmly congratulates the Ministry of Foreign Affairs and working for Clifford Chance, a large those of its alumni who have recently Trade in Wellington. His specialist area English law firm. She works in the joined the bench. These include: is international law, a subject in which Project Finance Team. She is also a he was top of the class at Michigan lecturer at the Goethe University, • David Abbott has been during the completion of his LLM teaching a course which serves as a appointed as an Associate Judge of the there. general introduction to the English High Court. Associate Judge Abbott • Kelby Harmes has been legal system for civil law students. At graduated from the University of appointed Private Secretary to the Lord the moment she is on maternity leave Auckland in 1970. He worked in Chief Justice in Britain. to enjoy her son, Jacob, who was born London early in his career before • Eesvan Krishnan won the six months ago. returning to New Zealand in 1977. He Legal Research Foundation Award for • Eugene Tablis has just moved then joined Auckland law firm Price Best Unpublished Paper and has been to New York to start a job as an Voulk Brabant & Hogan, before hired as a law clerk for Chief Justice associate with the law firm Fried Frank moving to Shieff Angland, where he Sian Elias. Harris Shriver & Jacobson LLP. became a partner in 1983. In 1997 he • Rembert Meyer-Rochow, • Anthony Trenwith was became a barrister sole, specialising in who graduated BA LLB(Hons) from awarded the Law Commission's Bill civil and commercial litigation. He has Auckland in 1994, has worked in Hong Sewell Prize in Legislation. been an active member of the Auckland Kong since 1997. Since 2000 he has District Law Society, particularly in been Asia Regional Counsel for Intel The Faculty notes that it can now claim continuing legal education. He co- Corporation, the world's largest as an alumnus the presiding judge of all founded The Legal Information Service computer chip company. In 2005 he the courts of general jurisdiction in Inc., has organised the legal roster at was a founding investor in FINDS, New Zealand. They are, Chief Justice his local Citizens' Advice Bureau for which has quickly became one of Hong Elias of the Supreme Court, Justice more than 20 years, and currently has Kong's hottest bars and restaurants Anderson, President of the Court of active community involvement as a

10 trustee of The Opera Factory Trust and Thomas (see above at page 8), has been September 2001. He became President as President of The University of appointed as Acting Judge of the as from January 2004. Auckland Society. Supreme Court. • Justice Glazebrook has had a • Raynor John Asher QC has • Susan Thomas has been distinguished alumni award conferred been appointed as a Judge of the High appointed as a District Court Judge. Ms by The University of Auckland Society. Court. Justice Asher graduated from Thomas is currently a partner at Minter She graduated from Auckland with an Auckland University with a BA LLB Ellison Rudd Watts. She served on the LLB (Hons) in 1980 (as well as an MA (Hons) and went on to complete an Board of Minter Ellison Rudd Watts in History in 1978 and a Diploma in LLM at Berkeley, graduating in 1974. from 2000 to 2004. She worked in Business in 1994). Justice Glazebrook He then joined, and subsequently London from 1983 to 1991, during joined Simpson Grierson as a law clerk became a partner of, the law firm which time she was a partner in a in 1986 and within three years was Kensington Haynes & White (now medium sized London firm for three given a partnership, where she rose to known as Kensington Swan). Justice years. She also worked as in-house national prominence in the field of Asher went to the Bar in 1986 and was counsel for Marks and Spencer plc in taxation. Justice Glazebrook's appointed Queen's Counsel in 1992. London. Ms Thomas' experience has distinguished law career resulted in her Since that time, he has been President mostly been in commercial property, appointment to the High Court in 2000 of the New Zealand Bar Association construction and resource management. and to the Court of Appeal just two and Auckland District Law Society, as She also sat on the board of Tennis years later. As a member of the well as Vice-President of the New New Zealand from 1997-2001. Advisory Council of Jurists, established Zealand Law Society. • Lisa Tremewan has been by the Asia-Pacific Forum of National • Patricia Courtney has been appointed as a District Court Judge. Human Rights Institutions, she has appointed to the High Court. After Judge Tremewan graduated from played a leading role in two major graduating from the University of Auckland University with a BA LLB reviews - human trafficking and the Auckland she was an investigation (Hons) and a MJur (with Distinction). rule of law in combating terrorism. officer with the Department of Trade Following graduation in 1985, she and Industry, before joining the firm of worked with Shieff Angland Dew for a Roger Connard, who taught at the Law Heaney Jones and Mason as a staff time, before moving to practise in School in the seventies sends the Law solicitor. She then joined the firm of South Auckland, where she remained School community his best wishes. For McElroy Milne, later becoming a until 1999. She served as Tenancy many years since leaving Auckland partner. She was a founding partner of Adjudicator from 1990-2000, was on Roger was sheep farming in the McElroys in 1992. Justice Courtney the Residence Appeal Authority from English Lakes' District. Then he took has specialised in insurance law, with 1998-2003 and was also appointed to an MSc in ecology at Lancaster particular expertise in professional the Removals Review Authority in University. He is now the Director of negligence cases relating to solicitors, 2000. She was appointed to the the Federation of Cumbria Commoners, accountants and trustees. Refugee Status Appeals Authority in which involves an “unusual • Simon France has been 1995 and, at the time of her combination of law, hill-farming and appointed to the High Court. After appointment to the bench, was a senior ecology”. graduating from the University of member of that Authority. She was also Auckland, Justice France worked for involved in various capacities serving Auckland law firm Nicholson Gribben on law society committees, and was a before departing for overseas study. He Council Member of the Auckland obtained an LLM from Queens District Law Society for several years. University in Ontario in 1983. On his She has been involved in numerous return to New Zealand, Justice France community and charitable initiatives. joined Victoria University of Wellington's Law Faculty, where he Awards and honours have been was a Senior Lecturer and then Deputy conferred on the following Dean of the Law School. Justice France distinguished alumni: joined the Crown Law Office in 1995 as Crown Counsel in the Criminal • Justice Anderson, President Team and has appeared on behalf of the of the Court of Appeal, was conferred Crown in litigation in the Court of with the status of Distinguished Appeal, Privy Council and Supreme Companion of the New Zealand Order Court. In addition, he represented the of Merit for services to the judiciary. Crown Law Office at meetings of the Justice Anderson graduated LLB from Pacific Island Law Officers group for a the University of Auckland in 1967. He number of years and has been involved was a partner in the Auckland firm in litigation skills programmes for Martelli, McKegg & Adams-Smith, Pacific Island lawyers. Justice France until commencing practice solely as a has published extensively in the subject barrister in January 1972. He was of criminal law. appointed a Queen's Counsel in May • The Faculty's Distinguished 1986, to the High Court in May 1987, Visiting Fellow, the Rt Hon E.W. and to the Court of Appeal in

11 In Memoriam: Kerry Russell McQuoid (1970-2005)

Kerry started off at Auckland emotional and intellectual honesty that him. Clients liked his work ethic and University as a bit of a loner in Law sometimes tangled him up in knots. He valued his advice. But Kerry was not School at large: he had arrived from would stew over things for hours (or just another well-trained New Zealand Waikato after his intermediate year and even days) trying to find an answer he lawyer in a city full of high flyers. He he tended to hang around with the other could cope with in his mind and was a trusted advisor. Within a few Waikato law students. He stayed at according to his values. When Kerry years he was the lead associate on a O'Rorke Hall, and a lot of his mates was deep in thought, his friends knew number of major international cases for when he first got to Auckland were to leave him alone. He could be Herbert Smith, and would routinely from O'Rorke rather than from law distracted and abrupt until the answer travel to Singapore and other Asian school. He was popular - almost came to him. Attempts to influence his cities as part of his job. Indeed, Kerry's universally so - and by the end of his views in the meantime would fail. career and personal travels had taken studies he knew people from all over However, his close friends also knew him almost everywhere. He made the University and indeed from all over how Kerry would eventually resolve friends and impressed people all over Auckland. any problem: he would try to do the the world. right thing by others, even if it was to Kerry and I got to know each other his own detriment. He held himself to In 2005, Kerry was offered and well in 1992 and '93. We cemented our high standards. To those who knew the accepted a job as in-house legal friendship at the Law Revue, where he process and watched and waited, the counsel for Morgan Stanley, where he played guitar in the band and I played answer was always the product of deep, was to be head of Asian litigation based drums. Kerry was an excellent ethical, emotional concentration. As a in Hong Kong. Sadly, it was a job he musician and an artist as well. When result, Kerry's decisions always would never live to start. His illness we finished our final exams that year commanded respect. manifested itself suddenly and and before we started work, we took unexpectedly while Kerry was in off together up to Paihia in my old V8 The intensity of Kerry's thinking London preparing for his new role. Holden and spent our last weekend as process was reflected in both his Friends and colleagues mobilised to unemployed students drinking in pubs, personal and professional life. When assist him when his illness became scraping together cash for takeaways he left University, he took a long time known. Among other places, calls and and trying to persuade the local girls to to decide what he wanted to do. He messages were passed to and from the cut loose with two fresh lawyers who started off his legal career with James Cayman Islands, the British Virgin one day would be famous. On our last & Wells in Hamilton, but later moved Islands, London, Hong Kong, night of freedom, we drank cold beer to Auckland where he worked initially Singapore, Bangkok, New Zealand, on the balcony of the bach, looked out for the legal department of a shipping Shanghai and Sydney. over the Paihia bush and talked about company. He did not have to wait long how far we had come and how far we before Russell McVeagh made him an It was no accident that Kerry managed would go. offer and he proudly started work there to secure a position as a key lawyer in for the shipping team. a top office of a major financial It was at times like that when Kerry institution. He was one of those guys was at his most entertaining: intensely During a holiday in Hong Kong in who, quite simply, had it all together. interested in discussing life, philosophy 1999, Kerry quickly impressed the Kerry had worked out what was and law, quietly reflective on his own litigation partners at Herbert Smith and important in life. His modern day position within the universe, and was offered a job in Hong Kong's philosophy was not flashy or trendy or confident in his own physical and premier litigation practice. The false. He knew what he believed in mental abilities. He could handle decision to leave Auckland and the life and why he believed in it. Kerry himself in any situation, professional or he loved at Russell McVeagh was an wasn't distracted by the trappings of personal. When he was interested in agonising one. But he had lots of wealth and privilege that became part something he spoke with a twinkle in friends in Hong Kong, the pay was of his jet-set lifestyle. He knew that it his eyes and a tight sparkly smile. He phenomenal and the city and its culture was better to be a great guitarist than it was an active listener and skilled at intrigued him. He was torn, however, was to buy the greatest guitar. He generating controversial discussion about whether to stay long term in knew that strength could come from topics. He could take a position on Hong Kong and be a lawyer or whether silence much more than it could come anything and argue it any way. But to accept a scholarship to study music from shouting. And he knew that without fail his approach was rational, at Trinity College in Dublin. This too patience and persistence and loyalty logical, and philosophical. He never was a dilemma that engulfed him for would bring success. started a conversation he couldn't finish weeks. He eventually chose law over or an argument he couldn't win. He music, rationalising it to himself by Kerry became a confidante to many could home come late from the pub or saying that he could take up the who wanted to know what he thought a club, make a strong coffee and talk scholarship later if the job at Herbert and what he would do. He was a for hours. Smith didn't work out. beacon of solid, steady support whenever a cool head and strong mind Kerry was sensible, original, organised The job did work out. His serious, no were needed. He was also more and brutally honest. He was more nonsense approach fitted perfectly with popular than most lawyers for two honest than anyone I know. It was an the big commercial cases assigned to reasons.

12 First, Kerry rarely made people feel on it when he was ready. He had a when our conscience tells us to do the stupid or self-conscious. His advice smug little grin that would come over right thing by others. We will was not dictated: he listened, observed his face, and he would watch you react remember his cheeky smile and his and asked questions. Then and only to his theatre. crushing one-liners. Kerry was then would Kerry give you his views. definitely here. When he did, he would say things that I last saw Kerry at one of his penthouse would stay with you for weeks and apartments on Hong Kong Island Kerry McQuoid died suddenly and months and years. Kerry was a man of earlier this year. We drank cold beer tragically from a brain tumour in July the people, a man who knew people, on his balcony, looked out over the city 2005. He will be sorely missed by and a man who people wanted to know. lights, and talked about how far we had family, friends, colleagues, and law Kerry did not blow his own trumpet. come and how far we would go. We lecturers. He did not show off. He told you what laughed about being boys from the he could say without sounding provinces who had become men of the A charitable fund will be set up in arrogant, and he let you work things world. We were still on the move but Kerry's name and memory. Interested out for yourself. one day we would be home. persons should contact: Sammy Fang, Flat D, 7/F, 76 Village Road, Happy The second reason Kerry was so Kerry was a self-made man, successful Valley, Hong Kong (Tel: +852 9803 popular was that he was fun. He by any standard, and loved and 7394/ email: sammyzyfang@hotmail). played in a band, performing in clubs admired by people all over the world. and on radio in Hong Kong. His We will remember him when we hear humour was dry and clever. Kerry our favourite songs and play the music Mac Imrie (LLB 1993) always got the joke first and let you in he recorded. We will remember him

13 Inaugural Hood Fund Fellow Hosted by Law School

Dr Ngaire Woods graduated from the International Relations at Oxford published in late 2005 by Cornell University of Auckland in 1987 with University and the Director of Oxford's University Press. This book formed the conjoint degrees in law and economics, Global Economic Governance foundation of her two public lectures in before taking up a Rhodes Scholarship Programme. Auckland as a Hood Fellow - both to the University of Oxford, where she delivered to capacity audiences. completed her doctorate. In 2005 she Her distinguished career includes returned to her alma mater to briefly periods of service on a number of In the first lecture she discussed what take up the first Hood Fund Fellowship international bodies and references, drives the IMF and World Bank, asking awarded by the University of including being a lead consultant on the the question, “Why is it that these Auckland. United Nation's Human Development institutions, created right back in 1944 Report (2002), her current participation on the crucible of World War Two to As many of our readers will be aware, in the Helinski Process on perform very important global public the Hood Fund was established in 2004 Globalisation and Democracy, and her purposes, have become institutions to mark the contribution of the former membership in the resource group of associated with market focused Vice-Chancellor of the University of the United Nations Secretary-General's globalization - a form of globalization Auckland, Dr John Hood. Dr Hood left High Level Commission into Threats, that's attracted a lot of criticism for Auckland at that time to take up the Challenges and Change. exacerbating poverty and inequality?” role of Vice-Chancellor at the University of Oxford. It was, therefore, As well as having presented radio and In her second lecture she outlined the particularly fitting that the first Hood television programmes for the BBC in governance structure of the IMF and Fellow should be a New Zealander England, Ngaire has published World Bank and offered a set of from the University of Oxford. numerous articles and books on “practical ideas about how they could international institutions, globalization be reformed to better to fulfill their Dr Woods is now a leading world and governance. Her most recent book global and public purposes.” Ngaire expert on global economic affairs. She Global Mission: The IMF, the World expressed the opinion that such is currently a Fellow in Politics and Bank and their Borrowers will be institutions are necessary: “To have a world economy without them is like trying to play rugby with a referee. We Photo: Scott Optican need these institutions to make and enforce rules because without them it's the smallest countries that end up the most vulnerable.”

Whilst Dr Woods' visit was hosted by the Law School, it attracted interest from across the University. She was caught up in a whirlwind succession of roundtable lunches, dinners and informal meetings with academics and students from the Faculty of Law as well as the departments of Economics, Pacific Studies, Development Studies, Politics, History and Geography. She also found time to squeeze in several media interviews.

Ngaire was accompanied on her visit by her husband, Eugene Rogan, director of the Middle East Centre, St Antony's College, University of Oxford, and their two delightful children, Richard and Isabelle.

Reflecting on her visit afterwards, Ngaire remarked that, “it seems to me that the Hood Fellowship scheme will likely have a lasting impact on scholarship in New Zealand and elsewhere. It is a superb way of connecting scholars from across the world. This kind of connection lies at the heart of good, competitive scholarship and benefits us all.”

14 Dr Don McMorland Retires from the Law Faculty

In May, the Faculty gathered to honour Later he was the sole author of an been balanced by his practice as a the retirement of Dr Don McMorland invaluable text titled Sale of Land. barrister, and his long-standing from the Law School teaching staff. After being promoted to Associate editorship of the Butterworths Don joined the Faculty as a Junior Professor of Law, Don stepped down (LexisNexis) Conveyancing Bulletin. Lecturer in 1968 after graduating LLM from full-time teaching in 1992 to a With typical wit Don noted at the from Auckland. He took leave in half position and then a lesser part-time retirement function that, like the 1969-72 to complete his Doctor of position, continuing to lecture to an Cheshire cat portrayed by Lewis Philosophy from Cambridge enthusiastic class in Vendor and Carroll in Alice in Wonderland, he had University. From the beginning Don Purchaser. During his time at the Law slowly withdrawn from academic life made his mark in the teaching of Land School, Don has gained admiration until one was left with the smile alone. Law and later Vendor and Purchaser. from both staff and students for his It is to be hoped that Don will continue He was a founding author of the personal integrity, academic excellence, to grace the staff common room from dynasty of texts known as Hinde and gentle humour. His incremental time to time. McMorland and Sim on Land Law. retirement from the Law School has Kenneth Palmer Peter Devonshire Wins Distinguished Teaching Award

Peter Devonshire has been awarded a as an effective and successful lecturer. students understand the concepts and University of Auckland Teaching principles that are being discussed. Excellence Award for Sustained He teaches Equity and Personal Excellence in Teaching. Three awards Property, and also an elective paper on Peter received the Distinguished in this category are made annually and Equitable Remedies. Peter endeavours Teaching Award for the Faculty of Law they are contestable across the to engage the students and to present a in 1999 and has consistently received University. The awards were instituted considerable volume of material in a excellent evaluations for his teaching. in 2002 to encourage and reward structured and focused way. He is Befittingly, the Teaching Excellence excellence in teaching particularly appreciated for his clarity, Award was presented to Peter at the his ability to create a learning Autumn graduation ceremonies 2005 in Since joining the Faculty of Law in environment where ideas are freely the presence of the graduating law 1992, Peter has established a reputation exchanged, and his concern that the class.

The Greg Everard Memorial Mooting Competition The Greg Everard Memorial Mooting competition, now in its third year, provides a forum for law students to hone and advance their advocacy skills to the highest level. The Moot was instituted in the Law School calendar by the family of Greg Everard to honour his memory and foster excellence in the work of the commercial bar. This year's final was held on the evening of Tuesday 16 August before a packed public gallery in the Number One Court Room with Justice Allan presiding. The topic concerned the rights of celebrities to privacy and the restraint of publication of tabloid newspaper articles. In a tightly contested moot, Paul Paterson was declared the winner of the Greg Everard Memorial Mooting Prize for 2005

From Left: Louise Everard, Frances Everard, Justice Allan and Madeleine Everard with the student finalists: Paul Paterson, Daniel Abercromby, Sally Morris and Charlotte Samders. Photo: Scott Optican

15 The Auckland University Law Review

The Auckland University Law Review (AULR) continues to go from strength to strength in 2005, remaining one of the few journals to exclusively publish high- quality student work in New Zealand. In looking to the future and seeking to build a more professional journal, 2005's Editors-in-Chief have implemented many new initiatives in the way the Review is run. All staff have now undergone training programmes in legal research and editorial practice. Closer ties have also been forged with the New Zealand Law Review, with senior AULR staff assisting with footnoting work for the New Zealand Law Review and New Zealand Law Review editors assisting with AULR training. More stringent editorial guidelines have also been laid down.

The 2005 edition promises to be another valuable resource for anyone interested in developments in New Zealand law and legal scholarship generally. Articles to be published canvas areas as diverse as economics and contract, celebrity privacy, parliamentary privilege, the role of conscience in the law of contract, passing on in employment law, and historical pieces on Parihaka and women and taxation. Commentaries also cover a variety of areas sure to be of interest to practitioners, students and academics alike.

The AULR is always thrilled to hear from former staff members and contributing authors. A major initiative in 2005 is to build an alumni database. As many former authors and staff as possible will be contacted in the coming months as the Review looks to its 40th anniversary in 2007. The AULR also hopes to include alumni in future events, and to involve them with current members as valuable sources of information on careers and the substance and practice of the law. More information is available at the newly revamped website (www.aulr.auckland.ac.nz), which will also be carrying a comprehensive archive of past tables of contents by the end of the year. Since 2004, the complete back catalogue (except the most recent issue) has also been available electronically via the Hein OnLine database.

If you are interested in subscribing to the AULR, advertising to a broad international readership, or joining the alumni database please email the Editors- in-Chief at [email protected].

Father and son graduate 13 years apart. Mark Kelly moves the admission of his father, 16 Leo Kelly. Photo: Scott Optican Trajectories of Law in History: The Future Behind Us

The 24th Annual Conference of the Aboriginal children, the role of Australian and New Zealand Law and traditional leaders in contemporary History Society was held at the South Africa, colonial law in Fiji and University of Auckland, 10th-12th July NSW, Australian research on fault in 2005, with the theme Trajectories of marital property law, etc. A keynote Law in History: The Future Behind Us. speech on law and history by Justice Some 56 scholars from Australia Paul Finn of the Federal Court of (mainly), New Zealand, South Africa Australia (formerly a professor at and Canada gathered for the ANU) led to an interesting plenary conference. discussion on how to teach law to non- law students and history to law The opening event was a Ngati Whatua students. The conference dinner was welcome to Waipapa, the University held in the colonial vestiges of the marae, followed by a keynote address Northern Club. It featured a talk by on 'Truth, Reconciliation and the clash Professor Michael Taggart on of cultures in the Waitangi Tribunal' graveyards, gardens and common law from Chief Judge Joe Williams, a festschriften. response from an Australian native title lawyer and a paper about a song of The New Zealand Law Foundation lament sung at a Tauranga hearing of assisted with the conference in a the Waitangi Tribunal. The main number of ways, including bringing conference venue was the suitably Justice Finn to New Zealand and historic Old Government House. 35 bringing students from all five New papers were delivered on a wide range Zealand law faculties to attend the of topics, including Scottish stadial conference. This support was theory and indigenes, the Felons appreciated. Professor David Williams Apprehension Act 1865 (NSW), Julius of the University of Auckland Law Stone and fascism, dower in NSW, Faculty hosted the conference, with defamation actions in 19th century great administrative support from Jane New Zealand, New Zealand literature Kilgour. and legal history, the removal of Justice Paul Finn US Supreme Court Justice Antonin Scalia Visits

On October 21, 2004 the Law School successive generations of judges to happened) a more generalised “liberty” was privileged to welcome Justice breathe their own meaning into vague that includes, for example, reproductive Antonin Scalia of the United States and general terms of the U.S. Bill of choice and a freedom from regulation Supreme Court. Justice Scalia had Rights - terms such as “liberty”, “due of private sexual activities. Taking this visited once before, in 1999. As on that process”, “equal protection”, “cruel and view, he argued, was consistent with last occasion, the Judge addressed a unusual” and so on. For Justice Scalia, the framers' view of democracy. With large and attentive gathering of the expansion of those terms was more scope for democratic choices, the students, academic staff and profoundly anti-democratic. That was result might be that some states would practitioners. The subject of his address because, as he explained, the more the be liberal over abortion, others not, was the correct mode of interpreting Bill of Rights is expanded, the less some would have laws about private the United States Constitution. territory that remains for law-making sexual acts, others not. But, through the ordinary democratic importantly, these were the choices that Justice Scalia is a well-known advocate process. On the Judge's view, the Bill the Constitution always intended to of “originalism” - a concern to find out of Rights was intended to preserve the leave to citizens. The remedy for the meaning of the Bill of Rights as it political process by enshrining a minorities was to persuade others to was understood in the time of the relatively narrow set of rights. The support their cause, for this was framers - an approach that he advantage of an originalist view, then, democracy in action. On the Judge's contrasted with the “living was that it would preserve the word view, if the Bill of Rights came to constitution”. That latter approach, in “liberty” to mean what the framers' mean what successive generations of the Judge's view, was illegitimate and generation understood by it, namely judges thought it should mean, then the unprincipled because it allowed physical liberty, rather than (as has appointment of judges necessarily

17 became politicised. This he saw as a offender's house. For Scalia and his intended to reach this sort of bad thing; it ultimately made the fellow judges in the majority, what controversy. In contrast, Thomas J felt meaning of the Bill of Rights itself a counted was the original understanding that this avoided the real question, product of majoritarianism. of the Fourth Amendment - that which was whether the standard persons enjoy privacy in their houses, enacted in s 19 was breached, and that Originalism is not generally in favour and this precluded even invasions of standard was not affected by “what amongst the judges of the western privacy that might be perpetrated Parliament might or might not have world. And there are degrees of without a physical entry. In contrast, in contemplated when enacting s 19” (p originalism, for some might say that a jurisdiction firmly committed to 545). the original understanding of at least “living tree” interpretations, the some phrases in the Bill of Rights was Supreme Court of Canada has recently Much of the debate comes back to that they denoted a principle, or held unanimously that infra-red whether a Bill of Rights, or a provision standard, that each generation of judges imaging from outside a dwelling did in it, was intended to be “affirmatory” should apply in light of then current not constitute an unreasonable search or “amendatory”. Justice Scalia takes circumstances. On this view the and seizure under the Charter (see Rv. the view that the U.S. Bill of Rights prohibition on cruel and unusual Tessling [2004] 3 S.C.R. 432). was intended to affirm the important punishments was intended to set a bulwarks of freedom, and that it is the standard - in the knowledge that One may think the debate about Court's task to defend those. Some subsequent generations might use that originalism is irrelevant to the New more modern bills of rights are very standard to condemn certain Zealand Bill of Rights: not enough time explicitly “amendatory” - designed to punishments in use in 1791. has elapsed since its enactment to set a standard that is not yet reached, generate controversies about how old rather than protect a state of affairs that It is interesting to note, however, that words apply to new circumstances. But is valued. The South African Bill of there is no direct relationship between we have seen something like it in cases Rights and its equality guarantee is a originalism and conservatism. For such as Quilter v Attorney-General good example of an amendatory bill of example, in Kyllo v. United States 533 [1998] 1 NZLR 513 (CA), where rights. U.S. 27 (2001) the U.S. Supreme Court judges divided over whether s 19 of the with Justice Scalia writing for the Bill of Rights (anti-discrimination These are interesting and important majority held unconstitutional a rights) was breached by the common debates to have. The Law School was “thermal imaging” search under the law's definition of marriage to exclude delighted to be able to welcome Justice Fourth Amendment, even though the same-sex unions. For Keith J an Scalia back to Auckland. search was conducted from the road operative part of his (negative) and did not require intrusion into the conclusion was that s 19 had not been Paul Rishworth

Photo: Scott Optican

18 Two Kiwis at the International Criminal Court

working for local legal aid organizations, before returning to New Zealand to work as a researcher for the Child Poverty Action Group, a small policy-focused NGO. She got itchy feet and left again in 2003 for Cairo, Egypt where she volunteered for several months with a refugee legal aid project which provided legal representation to refugees taking claims to the United Nations High Commissioner for Refugees (UNHCR) for status determination.

In September 2003, she began her LLM at the University of Michigan, concentrating on international human rights and refugee law. After graduation, she spent the summer in fellowships; firstly at the UNHCR in Washington, DC, and then the AIRE Centre (Advice on Individual Rights in Europe) in London. She was also employed as a legal investigator for the US Department of State to interview refugees on the Chad/Sudan border about their experiences in fleeing attacks in the Western Sudanese province of Darfur. The result of those interviews was a declaration by US Secretary of State, Colin Powell, that genocide was occurring in Darfur.

In October 2004, she returned to Ann Arbor, Michigan, Larissa Wakim in Darfur working as a research scholar with Professor James Hathaway on several projects in refugee law. Her contract ended in June The Auckland Law Faculty currently has two of its alumni, when she started work as an assistant investigator at the Larissa Wakim and Leanne McKay, working at the International Criminal Court. International Criminal Court in The Hague. As most of our readers will be aware, the International Criminal Court Leanne's career path after graduation from the Auckland Law investigates genocide, crimes against humanity, and war School demonstrates a similar determination to make a crimes. It currently has three situations before it. The first two difference in the area of international human rights. After were referred to the court by the States themselves and graduation Leanne worked as a Refugee Status Officer for the involve the Democratic Republic of Congo and Uganda. The Refugee Status Branch of the New Zealand Immigration third was referred by the UN Security Council and involves Service determining claims for asylum. A highlight during Dafur in Sudan. Because the court is a relatively new that time was working the Tampa asylum seekers that New institution, and these are some of the first cases running Zealand accepted from Nauru in October 2001. through it, everything that is happening at present is precedential. Larissa told me that this makes for an exciting In early 2002 she moved to Melbourne and commenced a working environment. Similarly, Leanne remarked that: Masters in Public and International Law at Melbourne University, specializing in international human rights law. She “There are some fantastic people here in the Court and having considers herself fortunate to have been taught by Professor come from NZ/Australia the opportunity to work in such a Tim McCormack during that time. Professor McCormack is culturally diverse and international environment is fabulous. (among other things) amicus curiae for the trial of Slobodan And although the Court is not yet holding trials, it is a really Milosevic at the International Criminal Tribunal for the former interesting time to be here in Chambers in terms of the Yugoslavia, and for the past two years she has worked with contribution that can be made to the interpretation, him in the preparation of briefs on various issues of development and implementation of policies and procedures international humanitarian and criminal law for the trial that will affect the future operations of the Court.” judges. After completing her Masters at the end of 2003, she commenced work at Melbourne University as a Research I pressed Larissa to describe where her obvious passion for Fellow on a project looking at Australian parliaments and the international human rights, particularly in the context of application of human rights to legislative making processes. At humanitarian crises, came from. She commented that she grew the beginning of 2005 she began working as a Research up in an environment that was conducive to developing such Fellow to the Asia-Pacific Centre for Military Law. an interest because both of her parents took a keen interest in social justice issues - both domestic and international. But In amongst all this Leanne did extensive volunteer work with Auckland Law School helped her find her niche. She Amnesty International Australia in the refugee field and also commenced a law degree because she believed that it was a volunteered with the Refugee and Immigration Legal Centre, profession that offered the opportunity to make a positive drafting submissions to the Minister for Immigration for the impact both in the lives of individuals and on the wider grant of humanitarian visas for failed asylum seekers, community. Whilst at Auckland she took classes with Rodger particularly from East Timor. Haines and Treasa Dunworth, which inspired her to head in the particular direction that she has gone subsequent to It was in April of this year that Leanne commenced a six- graduation. month internship at the International Criminal Court. She works in Pre-Trial Chamber II for the Samoan judge, Judge Larissa graduated from the University of Auckland with a Tuiloma Neroni Slade. BA/LLB in 2000. She then spent two years in Cambodia, Julia Tolmie

19 Non-Calamity Jane Eulogy to Sir Trevor Skeet

Jane Kilgour's name has become synonymous with The Graduates of this Law School may be unaware that, since World War II, Legal Research Foundation. From her appointment as not one but at least two of their number have been long-serving its Secretary-Treasurer in 1992 she has been of as high members of the United Kingdom Parliament. One, of course, is Bryan visibility in and about the Law School as many of the Gould CNZM (LLM, 1962) who was a member of the Labour shadow full-time lecturers. Between then and early 2005 Jane cabinet during the 1980's, before unsuccessfully contesting the Party orchestrated more than fifty seminars and conferences, leadership in 1992. The other, less well-known here, was Sir Trevor including a number of international two-day affairs. Herbert Harry Skeet who, apart from a gap of six years in the 1960's, was a Conservative M.P. from 1959 until his retirement at the age of 79 Jane, an unfazable Queenslander, occasionally took “no” for an answer but under dignified protest. If she didn't in 1997, and who died in England on 14 August last year. move mountains that was only because the Legal Research Foundation never booked mountains for its While, in their different ways, both attained distinction, neither actually functions. She literally opened doors to the Foundation's achieved high Government office. In an obituary of Skeet, the business and then flawlessly administered it throughout Independent (London) offered this explanation: the day or days of the function in question. She “Academia in Britain has been vastly enriched by the infusion of talent invariably also organized a generous after-match from New Zealand, of whom Ernest Rutherford is only one among the function “where the meaningful argumentation and most eminent. In politics, New Zealanders have fared less well. Bryan moves to law reform occur.” Where occasionally Gould's undoubted talents would have been recognized at an earlier managers and flunkeys at host locations proved unco- stage had he not had a certain stigma of being from “Down Under”. operative Jane (very quietly) took no prisoners and things were done her way. This writer attributes her And, I believe, the reason why Trevor Skeet never achieved the success to a form of Aussie charm from which Boedicia, ministerial office to which his competence and assiduity surely entitled as well as Mrs. Thatcher, could have learned enough to him, and which he craved, was that his colleagues reacted with, “Why have kept them much longer in business. She has a very should we give precedence and a plum job to a bloke from Auckland?”” big sense of humour too (if anything had gone wrong - which it didn't - she could have seen the funny side The writer of that not particularly encouraging comment was a former of it). Father of the House of Commons, Tam Dalyell, Eton and Cambridge, a journalist and author, himself a veteran Labour member for Scottish From the age of about 10, Campell, Jane's son, helped constituencies, and another whose long service has gone unrewarded by out in a variety of tasks. Husband Kevin was ever- higher office. The other thing they seem to have had in common was an present at functions and, as the new Law Society's representative on the Legal Research Foundation active interest in matters scientific and technical. In particular, it was Council, he maintains the Kilgour presence. Dalyell's view that Skeet probably knew more about the details of energy than anyone else in the House. Jane has gone off “to play some golf”. I would be nervous to partner her if I didn't replace my divots. A third- or fourth-generation New Zealander, and describing himself, accurately enough, as British in Who's Who, Skeet retained his New During her time with us some dramatic innovations Zealand passport to the end. He was born in Mt Eden in 1918, attended occurred. Among them were the re-vamp of the New Kings College, and graduated LLB from Auckland University College Zealand Law Review, the reformation of the accounting in 1942. After serving during the War as an army and then as a naval system, and the instigation of the annual Distinguished engineer in North Africa and Italy, he obtained a place at the Inner Visiting Fellowship to the Law School. Temple and was called to the English Bar in 1947. In Parliament, he Jane's departure was marked with a function at Justice was an energetic campaigner for causes which did not always find Rodney Hansen's house. Barbara Relph has taken over favour in his own Party, so much so that his proposals for the control of at the Legal Research Foundation quite seamlessly. We nuclear power generation prompted his local Conservative Association trust she will guide us for at least as long as Jane has. to threaten to deselect him. Against expectation, a ballot to retain him And as happily. was won with a substantial majority. Indeed, either despite his Bernard Brown independence or because of it, he appears to have been a popular Photo: Scott Optican constituency man, having been re-elected six times, usually with an increased majority. His most important contribution in the House of Commons was said to have been as Chairman of the Parliamentary and Scientific Committee 1985 - 1988. He was knighted in 1986.

On the other hand it would seem from the obituary in the Independent, and another in the Daily Telegraph, that his fellow members did not find him the easiest person to get on with. Described as honourable, tall, lean and fit, and stating in Who's Who that he was an experienced public speaker, he was nevertheless also said to be persistent, inclined to pontificate in a didactic manner, to be raucous and opinionated (inserting “I think” more times per speech than any other member) and to be one who was, perhaps, too ready to share his expertise and opinions with anyone who would listen. The suspicion has to be that it was these traits, at least as much as his Mt Eden origins and Kings College education, which cost him the office which Dalyell believed he both craved and deserved. Brian Coote

20 An Honour for Jock Brookfield The recent appointment of Emeritus especially, constitutional law. Through attending his inaugural lecture on Professor F M (Jock) Brookfield as a his editorship of Goodall, and of Nevill, 'Legitimacy and the New Zealand Companion of the New Zealand Order and his membership for 14 years of the Constitution' brought home to many of Merit (CNZM) makes him the fifth Legislation Advisory Committee of people for the first time the differences former member of the full time Law Parliament, he has had considerable between the Maori and English School staff to have received a royal influence on legal drafting practice in versions of the Treaty and their present- honour in the last twelve years. this country. There have also been day significance. His work in this area several articles on water and soil has since been pursued with energy and A graduate of this Law School in its conservation, which culminated in his courage, especially since his retirement, University College days, and of Oxford authorship of the title, Water in The and has included the publication of his where he took a D Phil, Professor Laws of New Zealand. Then, too, he very well received book, Waitangi and Brookfield practised initially as a has written widely on aspects of land Indigenous Rights: Revolution, Law partner in Brookfield, Prendergast, law, a subject he taught for many years. and Legitimation, AUP, 1999. Schnauer & Smytheman. Having joined the academic staff in 1966, he Undoubtedly, though, his greatest Most recently, he has sought to suggest served successively as a Senior interests and contributions have been in ways in which issues arising from the Lecturer, Associate Professor, Professor relation to constitutional law. His foreshore and seabed controversies and Dean. Since his retirement at the Oxford thesis was prompted by the might be resolved. end of 1993 he has very actively Unilateral Declaration of Independence continued his research and writing, and in Rhodesia and made him an His appointment to the New Zealand still occupies an office at the Law international authority on revolution Order of Merit has been warmly School. and constitutional legitimacy. This received as a most appropriate interest led on to his numerous acknowledgement of a distinguished His lectures, articles and books have contributions to Treaty of Waitangi career; one which, it will be widely mainly reflected interests in land law, jurisprudence and to sovereignty hoped, will continue to bear fruit in conveyancing, water law and, questions generally. The publicity years to come.

Gongs Galore: From left, Bernard Brown ONZM (2000), Nadja Tollemache OBE (1993), Jock Brookfield CNZM (2005), Margaret Vennell ONZM (1997), Brian Coote CBE (1995)

21 Professor Greenberg is the Legal Research Foundation Distinguished Visiting Fellow 2005

The Faculty, in conjunction with the Legal Research Professor Greenberg's life and visit appeared in the New Foundation, had the pleasure of hosting Professor Jack Zealand Herald, Law News and Law Talk magazines. He also Greenberg and his wife Deborah Greenberg from mid-July to gave a public lecture at the Engineering School, which was early August, as the Legal Research Foundation Distinguished well attended by University staff, members of the legal Visiting Fellow for 2005. The visit was underwritten by profession, and even Auckland high school students. The generous grants from the New Zealand Law Foundation and Auckland District Law Society hosted a function for Professor the United States Embassy (Wellington) Department of Public Greenberg, who concluded his time in Auckland with a Affairs. keynote address at the Legal Research Foundation's Legal Methods III Conference: Law, Social Policy and the Role of Professor Greenberg, of Columbia University Law School in the Courts. New York, is best known for his role in litigating Brown v Board of Education, the landmark 1954 US Supreme Court After his time in Auckland, Professor Greenberg and Deborah case that ruled racial segregation in schools to be travelled south to speak in Wellington and Christchurch, and unconstitutional. The Brown decision, which turned out to be to address the New Zealand Bar Association's Winter a catalyst for the US civil rights movement, was one of forty Conference in Queenstown. He also met with members of the cases Professor Greenberg argued before the Supreme Court New Zealand Supreme Court, and was hosted in Queenstown during his time with the NAACP Legal Defense and by Chief Justice Dame Sian Elias and her husband, University Educational Fund. Upon leaving the Legal Defense Fund in of Auckland Chancellor Hugh Fletcher. 1984, he joined the faculty of Columbia University Law School where he teaches civil procedure, and civil and human Professor Greenberg and Deborah - herself a graduate of rights law. Columbia Law School, law teacher and US Supreme Court litigator - also found time for tourism, sampling New Zealand In addition to his academic work, Professor Greenberg has wine and food at some of Auckland's best restaurants. remained active in the civil rights movement through his However, some of the finest cuisine was to be found in membership in several organisations, including Human Rights “Sunderland House”, a beautiful Herne Bay bed and breakfast Watch. In recognition of his long service in promoting civil owned by law student Cathy Sunderland and her husband and human rights, Professor Greenberg was awarded the Donald Sunderland (an interior designer and television American Bar Association's Thurgood Marshall Award and the personality). Donald and Cathy were gracious hosts to the Presidential Citizens Medal. Greenbergs during their three-week stay in Auckland. Able to work in a professionally appointed kitchen, Professor Professor Greenberg has taught at universities all over the Greenberg justified his reputation as a gourmet chef by globe, including Yale, Harvard, Princeton, the University of cooking delicious recipes from his published cookbook: Dean Tokyo, the University of Munich and the University of Cuisine: The Liberated Man's Guide to Fine Cooking (with Nuremberg-Erlangen. He has also travelled to countries such Professor James Vorenberg, Dean, Harvard Law School as Poland, the Soviet Union, South Africa, the Philippines, (1991)). He also showed his skill at mixing margaritas and Korea, and Nepal. However, this was his first trip to New preparing Chinese dumplings with the author. Zealand. The Law School benefited tremendously from Professor During his time at the University of Auckland Faculty of Law, Greenberg's visit, as did the New Zealand Bar, the wider Professor Greenberg gave seminars and talks to students and University community, and members of the New Zealand staff about civil and human rights law, and public interest public. His visit was a rare opportunity to host a lawyer and litigation. He spoke to various Law School classes and scholar who has championed the cause of human and civil groups, and made media appearances on TV One's “Breakfast” rights in the United States and around the world. program, BFM Radio and Radio NZ. Feature articles on John Ip

Photo: Scott Optican

22 Jim Evans with his family at his retirement dinner. Photo: Scott Optican Professor Jim Evans Retires Jim Evans is one of the most the Dogmas of Realism', and The been an inspiration in the model he distinguished legal philosophers New Statute: Making and Meaning, under presents of inquisitive, painstaking, and Zealand has produced. He has an the title 'Reading down Statutes'. Jim's insightful scholarship.” international reputation as a fine body of work illustrates the careful, scholar and teacher who deals with close-textured work dealing with (Richard has since been appointed to a universal issues in the discipline of law. language and communication for which fractional lectureship in the Faculty, see It has been to the University of Jim is famous, and which has earned above at page 5). Auckland's enormous advantage that him a place among the foremost legal Jim has chosen to spend most of his philosophers of his generation. His In the life of the University and of the working life here, some 36 years, work, together with the impact he has Faculty Jim has always been altruistic, developing his research and nurturing made as the founder of the New supportive and interested. He was an generations of students. Zealand Society for Legal Philosophy important contributor for the University and an executive member of the in the 1990s in the fight for academic Jim, however, did not begin his legal Australian Society for Legal freedom - mobilising opinion, writing journey here. He was introduced to the Philosophy, will ensure that Jim's submissions and appearing before a discipline of law at the University of influence will endure. Parliamentary Select Committee. He Otago where he graduated BA, LLB in remains a valuable ally in the on-going 1964. He then came north to the Jim has, however, wider interests in quest to bring clarity to parts of University of Auckland, graduating law and in life. In the law he has Wellington as his piece in the New LLM first class honours in 1970, demonstrated a remarkable versatility, Zealand Journal of Educational Studies before undertaking a PhD at the writing recently on judicial demonstrates. It is entitled 'Muddled University of Cambridge, graduating in appointment, Aristotle's theory of Thinking in the Funding of Tertiary 1974. Before joining the staff of this equity, the development of the doctrine Education in New Zealand'. Jim University in 1969, Jim had a period as of negligence, the dilemma of proof founded the Law Faculty's Blind a practising lawyer in a firm that has and the extension of criminal statutes, Lawyers' Network, and remains the now evolved into Phillips Fox. constructive trusts, the nature of a legal only sighted member of it. He has also right, and “choice and responsibility” been, for a number of years, the Jim's promise was recognised early by in law. In his early work he wrote even Faculty's Academic Adviser to Pacific the award of a prestigious Tapp more widely; infants' contracts, Island students. Research Scholarship to Gonville and contractors' liens, legal aid, the liability Caius College at the University of of the Crown, practical training for But none of this quite captures what a Cambridge. Since then his scholarship lawyers and abortion are all subjects marvellous colleague Jim is. He is has been consistently recognised by that have captured his attention and to willing to talk, argue even, on all kinds invitations and research fellowships, which he has brought his distinctive of issues, constantly searching for the many keenly contested across clarity and accuracy. truth, for a better understanding, for disciplines. He has, for example, held accuracy. No problem is ever too small research fellowships (often more than As a teacher Jim has inspired or too large to engage his interest. once) or invited visiting positions at the generations of the top students in the Every problem is treated by him with Universities of Cambridge, ANU, Law Faculty, many of whom now the same degree of care, and many of Melbourne, Sydney, Wollongong, occupy key academic positions here his colleagues have therefore found Cornell, Dalhousie, Hong Kong, British and overseas. The following remarks him an invaluable sounding board for Columbia, Calgary, Colorado, and come from a former student, Richard intractable problems in their own fields Malaya. Ekins, a FRST top scholar and winner of study. Sessions with Jim can of the Hart prize for Jurisprudence at sometimes last hours, but colleagues A principal focus of Jim's scholarship the University of Oxford, now working are frequently amazed at how fast he has been on philosophical issues in towards his DPhil at Oxford: can be at getting to the nub of a statutory interpretation. His PhD thesis “It has been a privilege for me to learn problem. The answer may not even be was entitled An Analysis of Rules and from Jim. After instructing me in the where one thought the problem was. its Relevance to Statutory basics of my field, Jim acted as an Interpretation and his later work has exceptional research supervisor. He We have been all the richer for having developed a number of its themes. For provided invaluable guidance in him among us and we hope that we example, in his outstanding book, determining the direction of my will continue to benefit from his Statutory Interpretation: Problems of research and he subjected my work to wisdom and humour for many years to Communication, and his contributions unfailingly perceptive, rigorous and come. We all wish him, and Jill, the to the sets of essays edited by Rick clear analysis. Throughout my formal very best and most productive of Bigwood, Legal Method in New studies, and thereafter as an intensely retirements. Zealand, under the title 'Questioning helpful and dedicated mentor, Jim has Julie Maxton 23 The Equal Justice Project

Two Auckland law students, Eesvan Krishnan and Peter justice through five projects: Williams, have spear-headed an exciting new organisation 1. Free student-run legal clinics at the Waitakere Community designed to make legal services more accessible to the Law Service. Supervised at all times by volunteer solicitors, community, as well as giving senior students the opportunity the students will help interview clients, conduct research and to experience working with clients, and receive training from, discuss possible legal solutions. This will help to significantly the profession and judiciary. The Equal Justice Project (EJP) is increase the capacity of the first community law centre in Auckland Law School's first student-run pro bono programme West Auckland. and has already received significant support from the Faculty, 2. Legal education workshops about practical aspects of the Profession, Judiciary, and the Auckland District Law Society law at Auckland high schools. This year they will concentrate (who are EJP's principal sponsors). EJP is modelled on highly on running workshops in lower decile schools. successful programmes overseas, and in parts of New Zealand, 3. A combination of initiatives to promote access to justice to which promote a win-win situation: students help the refugee and migrant communities, which have particularly community, and in doing so gain valuable experience and life acute unmet legal needs. skills. 4. Assisting the Human Rights Commission in legal research into complaints mechanisms in the mental health field. The Project is based on the principle that everyone has the 5. Conducting the first-ever empirical survey into the nature right to equal access to justice; that is, no one should be and extent of pro bono work currently being done in denied the ability to access legal services because they cannot Auckland. afford a lawyer. While there are already measures in place to promote access to justice, such as the Legal Aid Scheme and EJP envisions making a contribution to the legal education of community law centres, many Aucklanders do not qualify for Auckland law students in three main ways. First, it could help legal aid and may not be able to access a community law shape their professional values, including a commitment to pro centre. To address the gap between public resources and bono services. Secondly, it offers educational benefits in areas unmet legal needs, the profession has a long tradition of pro like professional responsibility, problem solving, lawyering bono work. But, as Eesvan and Peter observe, it is clear that (including client interviewing techniques), and leadership the demand for pro bono work exceeds its supply. Drawing on skills. Finally, it will assist students' career development and well-established scholarship, Eesvan and Peter argue that pro foster good-will between law schools, alumni and the bono work is “best understood as an ethical obligation community. incumbent upon every lawyer rather than a form of charity,” and thus the profession can and should do more to address Each of the five projects is managed by a penultimate year unmet legal needs in Auckland. EJP is a first step: student and an Advisory Committee, made up of members of “In partnership with community groups and the profession, the Faculty and Profession, assists the students on an ad-hoc EJP aims to harness the knowledge, skills and enthusiasm of basis. The Committee currently consists of Scott Optican, law students to promote access to justice and, in doing so, Professor Julie Maxton, and Rodger Haines, QC. The project's advance a vision of pro bono work as an ethical obligation.” patron is Justice E.W. (Ted) Thomas (see his profile above at page 8). The response from the student body to EJP has been fantastic - over 130 penultimate and final year students signed up as EJP can be contacted at [email protected] and would be members. In 2005, EJP's members are promoting access to grateful for alumni to get in touch to assist the organisation.

Justice Thomas with Eesvan Krishnan and Peter Williams at the launch of EJP. Photo: Scott Optican

24 2005 Law Postgraduate Programme

2005 has seen some changes to the of aboriginal title jurisprudence and Girl-Child - Cross-Cutting Challenges postgraduate team. In February this methodology in Canada, Australia, in Human Rights, November 2004. year, Professor Mike Taggart took over USA and New Zealand, with a focus on as Director of Postgraduate Legal customary fishing and hunting rights The following students had their Studies for the duration of Professor cases. articles published in the 2004 issue of Paul Rishworth's six months research the New Zealand Journal of leave. In July this year, Professor The following students had articles Environmental Law: Rishworth became the new Deputy published in the New Zealand • Stephanie Curran, LLM Dean and Michael Littlewood became Postgraduate Law eJournal: student, 'Sustainable Development v the new Director of Postgraduate Legal • Geoffrey Beresford, LLM Sustainable Management: The Interface Studies. student, 'The Processes of Between the Local Government Act Constitutionalism in New Zealand and and the Resource Management Act'. In addition, Kerry Tetzlaff joined us as the United Kingdom'. • Anja Gerdung, LLM student, Acting Postgraduate Manager from • Sam Carey, LLM student, 'Global Environmental Governance and December 2004 - August 2005 while 'Obiterated! Should New Zealand the Role of Civil Society Groups'. Nicola Andrews took maternity leave. Follow the UK's Lead and Extend the • Stephanie Mead, LLM Carlene Nienaber commenced as Action of Breach of Confidence to graduate, PhD student, 'The Acting Postgraduate Manager in Cover Privacy?' Precautionary Principle: A Discussion August 2005. Like Kerry (see above at • Marlene Frank, LLM of the Principle's Meaning and Status page 9), Carlene has a long affiliation graduate, 'The Rights of Employees in in an Attempt to Further Define and with the Law Faculty, having the Event of the Employer's Understand the Principle'. completed her BA LLB in 2002/03 and Insolvency: A Comparative Approach • Ceri Warnock, LLM student, subsequently commenced her LLM. to the Rights of Employees During 'The climate Change Regime: Efficacy, Restructuring in the United States and Compliance and Enforcement'. International Developments Europe'. • Anja Gerdung, LLM Geraldine Hikaka, LLM student, co- Students are responding positively to graduate, 'Invasion of Privacy: Does wrote a paper with Professor John the opportunity, and increasingly are and Should a Common Law Tort of Prebble of Victoria University entitled: choosing, to add an international study Invasion of Privacy Exist in New 'Legal Autopoesis and General Anti- component to their postgraduate study. Zealand?' Avoidance Rules'. This paper won The Law Faculty thus had a number of • David Griffiths, PhD second prize at the Australasian Tax students head over to Freie University, candidate, 'There's No Art to Find the Teachers Association Conference, Berlin, for the two week intensive Mind's Construction in the Face.' 2005. course Environmental Policy and Law • Gina Hefferan, LLM student, in Germany and Europe from 4-14 July 'Exemplary Damages in Contract: Philip Gurney, LLM student, had his 2005. Associate Professor Klaus Another Anomaly?' paper, 'The New Zealand and Bosselmann taught the course in • Herman Salton, PhD Australian CFC Regimes' published in conjunction with several German candidate, 'Veiled Threats? Islam, (2004) 10 New Zealand Journal of colleagues, and the course included Headscarves and Freedom of Religion Taxation Law and Policy 309-333. excursions to European and German in France and the United States.' Another LLM student, Nicola environmental institutions. In addition, • Kerry Tetzlaff, LLM student, Williams, published her paper, 'The several students attended courses at the Scope for Invoking Legitimate University of Melbourne. Expectation in the New Zealand Tax Law Context', in (2005) 11:1 New Zealand Journal of Taxation Law and Postgraduate Successes Policy.

Our postgraduate students and Michael French was awarded the Gaze graduates have had many successes Burt Prize for Commercial Law (best over the last year. Some of them are MComLaw student in 2004). Matthew outlined below: Allen was awarded the Gaze Burt Prize in Franchising Law (2004). John Barker's PhD in Law and Geography (see last year's edition of The University-wide postgraduate Eden Crescent at page 18) won one of research competition has now finished, the University of Auckland's Best with three of the five law students who Kerry Tetzlaff. Photo: Scott Optican Doctoral Thesis Awards. entered winning places. Frank 'Towards a Global Convention on the Schoene-de-le-Nuez presented his Guy Charlton, a full time PhD student Right to Water.' This paper was also LLM tax research: 'The Aging Society, from the United States of America, was presented at the International Council Fertility Rate and Tax Incentives for also awarded a University of Auckland of Women's Asia Pacific Conference, Having Children'. Frank came first in International Doctoral Scholarship. Women in Sustainable Development: the Business and Law division of oral Guy is engaged in a comparative study Poverty Eradication, Water, and the

25 presentations. Eric Kwa, who presented The NZPGLeJ was founded by Herman include, amongst others, Professor an aspect of his PhD research, Salton (Editor-in-Chief) and Kerry Charles Wilkinson (Distinguished 'Strengthening Traditional Knowledge Tetzlaff (Deputy Editor-in-Chief). Due University Professor at the University Through Partnership for Sustainable to the departure of Kerry, David of Colorado, winner of various awards Development,' came second. Deidre Griffiths has now replaced Kerry as for leadership, scholarship and teaching), Professor Richard Calnan Bourke, whose LLM thesis is entitled Deputy Editor-in-Chief for Issue 2. (Visiting Professor at University Kerry remains involved in the capacity 'The Regulation of Animal Experiments College, London, partner since 1987 at in New Zealand - A Case Study of of Senior Editorial Advisor. the leading international law firm Enforced Self-Regulation,' was placed Norton Rose), Francis Dawson (once a in the top 11 research posters out of LLM Courses for 2006 member of the Faculty of Law, approximately 40 posters which had University of Auckland, and well- been selected from faculty 2006 promises another exciting range known in Auckland as an outstanding competitions. The fact that we have the of intensive and full semester courses teacher and contract lawyer), Philip smallest postgraduate programme in in the postgraduate programme. A flyer Baker QC (Visiting Professorial Fellow the University but were well inserted into this magazine contains the at the University of London, practising as a Queens Counsel from chambers in represented amongst the prize winners most up to date details of the courses on offer. London) and Jeffrey Jowell QC is a reflection of the calibre of students (Professor of Public Law at University that the Law School's postgraduate At the time of going to press intensive College, London, Vice-President of the programme is attracting. courses in the following subjects had Council of Europe's Commission for been finalized: Advanced Issues in Democracy Through Law, and New Zealand Postgraduate Technology Law; Commercial Law & practising as a Queens Counsel from Foreign Investments in China; chambers in London.) Law eJournal Common Law in Theory and Practice; Contemporary Issues in Administrative In addition there will be full semester January 2005 saw the launch and Law; Contract Law; Disability in a courses offered in the following inaugural issue of the New Zealand Global Setting; Indigenous Rights and subjects: International Environmental Postgraduate Law eJournal. This is an Natural Resources in Comparative law; Energy & Natural Resources; online refereed journal dedicated to Perspective; Medico-Legal Issues; Maritime Law; Resource Management; promoting and publishing postgraduate Oceans Law & Governance; Problems Employment Law; Local Government; Wine Law; Copyright; Corporate research throughout New Zealand and of Corporate Insolvency; Public Law; Governance; Regulation of to providing postgraduate students with Remedies; Sports Law; Tax Law; Wildlife and Domestic Animals. International Trade; Communications the opportunity to gain editorial & Information Technology Law; experience. It can be found online at These courses will be taught by a range Insurance; Franchising; Insolvency. www.nzpostgraduatelawejournal.auckla of distinguished guest lecturers from nd.ac.nz. New Zealand and overseas. These

Postgraduate students visit Stonyridge Vineyard on Waiheke Island. Photo: Scott Optican

26 Mayo Memorial Funding Boosts Research

some up to three centuries old. The Stuart McCutcheon. new funding has also enabled the collection to be cleaned prior to its Marylyn Mayo, one of the Faculty's relocation, and makes provision for its early women law students, graduated ongoing development and BA LLB in 1960, and became an office preservation. Prior to Dr Mayo's gift, solicitor at the Ministry of Works in use of the collection was severely Auckland. Her move to Australia restricted as the room in which it was initially saw her teaching first-year law stored was cramped and overfull, and at the Townsville campus of the some of the material was in a parlous University of Queensland. She was state and not able to be handled. later requested to be Foundation Head at the Law School of James Cook The reading room itself is home to a University, where she stayed until she large selection of reprinted legal retired. Dr John Mayo was responsible treatises and a growing collection of for establishing economics as a faculty publications. discipline at the same university.

The creation of the Marylyn Mayo Marylyn Mayo always retained a strong Rare Book Room is a significant interest in, and affection for, the law milestone in the Faculty's research and her alma mater. In 2002 she capabilities. As Professor Mike endowed annual scholarships for Taggart, holder of the Alexander Auckland law students who were Photo: Scott Optican Turnbull Chair in Law, has stated struggling financially (see 2002-2003 “Much of the research that, a few years Eden Crescent at pages 4-5). A generous gift by Dr John Mayo in ago, could only be undertaken overseas memory of his wife, Marylyn, has can now be conducted here.” As the The Davis Law Library is proud to be provided a significant fillip to historical collection develops so too will the the custodian of this special memorial legal research within the Faculty of importance of the Marylyn Mayo Rare and is anxious to preserve the treasures Law. The memorial, the Marylyn Mayo Book Room to legal researchers. of our legal heritage. Members of the Rare Book Room, is located in the legal profession who have legal texts Davis Law Library and comprises a Dr John Mayo, and invited guests, which they either no longer require or spacious and comfortable reading including friends and fellow students of are unable to accommodate are urged room, and two smaller rooms which Marylyn, faculty and library staff to contact the Davis Law Library house a collection of rare and historical attended the official opening in March ([email protected]). nominate reports, statutes, and texts - by the Vice Chancellor, Mary-Rose Russell The Making of Modern Law is the Making of Modern Legal Research

Ever needed to trace an esoteric point MOML, the new law initiative in the historians, this is marvellous. For this of law, say in a first edition of Chitty's suite of Thomson Gale archival type of resource, the acquisition has or Arnoud, and been thwarted as there products, “covers nearly every aspect catapulted us into something little are no copies available in New of American and British law, including different from the very best US law Zealand? With the assistance of domestic and international law, legal libraries and Oxbridge.” strategic funding from the University, history, business and economics, the Davis Law Library has just politics and government….” Not only Professor Mike Taggart says, “Without purchased The Making of Modern Law is it an indispensable resource for legal any exaggeration, it can be said that the (MOML) which provides online access researchers but it also provides a acquisition of this resource will turn the to these wonderful old treasures of our wealth of information of use to Davis Law Library into a world-class law from the desktop. historians in a variety of fields - research library for modern (19th and politics, criminology, religion, social 20th) legal history.” MOML is a digital full-text archive of welfare and cultural history. 22,000 British and American legal In conjunction with the newly-opened treatises covering the period 1800 Our legal academics are highly Marylyn Mayo Rare Book Room, to1926. It contains seminal legal enthusiastic about this new acquisition. which provides physical access to the works, many of which are no longer Professor Peter Watts describes it as, Davis's rare and historical legal available in print. What makes this “unspeakably brilliant for historical materials, MOML provides the such an exciting product is that it is research. I am simply staggered by the University of Auckland Faculty of Law now possible to track changes in the material that is on there and its with the ability to undertake serious law through each edition of these early accessibility ... For those of us who use legal historical research. works. old texts, whether or not as legal Mary-Rose Russell

27 Our American Friends

presented him an LP record. Joe was an Release occurred on the Ambassador's amiable, ambling Southerner and the written promise to secure the funniest man, without knowing he was immediate withdrawal of all US forces funny, I have ever encountered. Years from Vietnam! after leaving us he returned for a weekend, booked a church hall in St. Stan Ross? He joined the University of Heliers and put on a colour-slide show New South Wales in Sydney and of a couple of his holidays. The slides continued for many years teaching in were dull, the commentary deadpan. It his inimitable style. And he published was hilarious. (Afterwards he asked books about law that were noteworthy me why everyone laughed.) I still have for their freshness of approach and the nagging suspicion the joke was on their irreverence. us. Three Americans, as different from one If Joe struck folk as unusual, Stan Ross another as each was from Stan Ross, was from another planet. A bullet-nick arrived at the Faculty early in 1972. in an ear lobe signified his credentials Two were to become 'fixtures'; the as poverty lawyer, North California. other, Dr. Bob Marsel, made his mark Stan was a pretty good international as an erudite and approachable scholar law teacher with a perfectly informal before leaving a year later to become approach to his lecturing. (We wore Clerk to the Chief Justice of the U.S. gowns in those days - late '60s early Supreme Court in respect of in 70s', Stan wore a sweatshirt.) Our pauperis petitions. Dean, Jack Northey who could strike fear into the sinews of a Supreme Court Of the other two, Jerome B. Elkind, judge at fifty yards, told Stan he would specialist in international law and Photo: Rachel Hale be teaching Land Law as well as public law, remained among us for When I joined the Law School staff in International. Stan didn't say a word twenty-five years. Jerry wrote some 1962 the appointment of a non-New and went off to teach International, high-profile opinions and for several Zealander was a rare event. The exclusively. Within weeks he became years enlivened the local press with 'locals' were very good value: of the New Zealand's first law lecturer to be commentaries under the by-line, other subprofessorials three became photographed by media in the act of “Elkind's Writ”. He resigned in 1997 Deans and all Emeritus Professors. teaching. The Auckland Star devoted a to take up an appointment at the They were, in the words of our leader, half page to Stan with thirty or so University of Swaziland. Jerry won a A.G. Davis, “a tight little ship”. students sitting on the sward in Albert prestigious prize for his book on Park during a lecture reading them interim protection in international law, The Faculty expanded dramatically in poetry. “Is This What the Taxpayer and was awarded a Doctor of Laws the mid-1960s. While I was overseas Pays For?” asked the Star? Stan was degree for his publications. an American named Art Fine came and reported as saying it was a nice sunny Maintaining active interest in the went. (I didn't meet him but surmised day, so why not? The audience thought Auckland Ethnic Council's work and in that he may have been more at home at all their lecturers should do the same public speaking, he now lives in semi- the Elam School of Art Fines.) In 1968 and said they liked their law studies retirement in Freeman's Bay, and a pleasant man named Ed Flitton interspiced with Ferlanghetti. (Not all engages in consultancy work. arrived with his family. Ed was a of us could do that: “indefeasibility capable teacher and made few bones under the Torrens system” was difficult The third “1972 recruit”, Dr. Bill about the fact that he was avoiding a to rhyme with anything). But it should Hodge, has become the voice and the war - the Vietnam conflict. He was be noted that Stan's modus operandi face of the Law School. No less. But followed by two flamboyant characters, engaged the legal imaginations of some there is a great deal more. He is a Stan Ross and Joe Richie. Joe, students where I and others had not pioneer teacher of any number of sometimes draped in a Confederate succeeded. One engagee went on the highly popular courses, notably flag, had arrived at Auckland with only bench here, another to a higher perch in Employment Law, Tort, Constitutional one “contact name”, Dr. B. Coote. an overseas jurisdiction. 1969 was a and Civic Rights, Criminal Procedure Discovering B. Coote's address, Joe stirring time for universities worldwide. and Pacific Legal Studies. Bill, more civilly knocked on the Bella Vista Knowing the US Ambassador was than anybody in the Faculty, has taken mansion door - to no avail (the good ensconced with the V.C. and professors law and practice “to the people”. A doctor was on leave.) He gained in the Law School Library, Stan natural broadcaster, his radio and admission to the house, with colour of quickly recruited a ragtag army of television presentations have broadened night,* and stayed on for a number of students and laid siege to the library for and deepened “the ordinary joker's” weeks. On the good Doctor's return, five hours. (This writer was one of the appreciation of law in its various Joe congratulated him on his legendary “captives” and attests that cocktail chat contexts. Bill headed the civil rights Kiwi hospitality and, in lieu of rent, tends to run thin after the first hour.) movement at some crucial junctures in

28 our modern history. Even-minded on criminal law and procedure in time to staff common room, Scott has turned issues of citizens' rights, Hodge worked create a durable legacy in a relatively us, and our preconceptions about law selflessly during the Springbok Tour brief sojourn here. (and let's face it, life itself) upside conflicts, not only to ensure that lawful down and inside out. In doing that he protest could occur but also that those Our Americans, like our Canadians and has left a thousand or so students with on the other side had unimpeded access South Africans (not to mention the indelible memories of Hollywood to their lawful appointments. occasional Brit and Cretan), have movies, exquisite hair-grooming, and Necessarily Bill Hodge's public increased this Law School's lately, daughter-adoration: and, be it persona temporarily retired itself appreciation of the laws of their noted, with the liveliest law-in-action during a three-year “seconded” countries of origin. Indirectly, and experiences they are likely to get appointment as an industrial arbitrator - often directly, they have facilitated the anywhere outside the courtroom or a time, incidentally, throughout which personal contact of New Zealand drafting chamber. A portrait of Scott's he continued the development of his teachers and students with their “home” dog (the late Friedel) - bewigged and near-legendary Employment Law jurisdictions. In the 1960s it was still a gowned - has found itself juxtaposed course in the Faculty. Now full-time rare occurrence when a Kiwi graduate with that of a long-serving Dean at the teaching again, Bill has resumed his took off for study in the USA. (Jack Law Library entrance. It's for real. It prime-time national news appearances. Northey had opened up the way to isn't an Optican illusion. An His no-nonsense classroom approach, Canadian universities.) Nowadays, as imaginative and articulate especially in Employment Law, and we know, probably more Aucklanders interactionist, Scott has earned the Arbitration, has won him the respect of study at post-graduate level in North University's Distinguished Teaching professionals and academes. The man America than in England. And it is no Award as well as a burgeoning who must be in his seventh decade, coincidence that a regular flow of reputation as an author on evidence, looks about thirty-five. He is the legs visiting U.S. and Canadian scholars, criminal procedure and the Bill of of the Faculty too! A marathon addict law practitioners and judges has moved Rights. from way back, Bill recently ran across this way since our first “career teacher” the United States. The sight of his bonds were established. Like our other American friends he has calves may be as familiar to colleagues brought us laughter, approachability, a and generations of students as those Back to the full-time. No, Scottie, you lot of talking points and, above all, an belonging to All Blacks and film stars. haven't been forgotten! Scott Optican arrestingly different view of our But his fame is less ephemeral. reached our shore - from practice as an system, and of ourselves. Vive la W.C. Hodge's good friend and book- Assistant District Attorney in New difference! collaborator, Mike Doyle, made a firm York - in 1992. The Auckland impression with us in the mid 1970s. University Law School has not been Unquestionably they have changed us The Doyles, like all our American quite the same (calm, reflective) more than we have changed them. friends, settled in fast and Mike institution since that time. A full- Bernard Brown adapted to the oddities of New Zealand impact player in the classroom, and the *A nocturnal play on colour of right

Amanda Lyne, Scott Optican and Julie Maxton in Singapore for the University of Auckland alumni dinner.

29 Peter Sankoff graduates with an LLM from Osgoode Hall Law School

This year's sabbatical leave was a particularly rewarding one flexibility are necessary components of a sound model of for Peter Sankoff, who spent the year in his native home of evidentiary admissibility, he argues the current approach Ottawa, Canada. In addition to getting married and teaching unwisely abandons predictability without ensuring that Criminal Law and Constitutional Law at the University of mechanisms exist to ensure that judicial choice is exercised in Ottawa, Faculty of Law, Peter also managed to successfully a principled manner. After reviewing fifteen years of write and defend his LLM thesis at Osgoode Hall Law School jurisprudence, Peter concludes that the results have been an at York University, Toronto. unnecessarily high level of inconsistency and a comprehensive failure to address the underlying issue of when a criminal Peter's thesis, R. v. Corbett and the Search for a Better record should be admitted in any sort of coherent manner. Understanding of Discretionary Power in Evidence Law: A More alarmingly, the failure to decide upon a theory of Thesis in Three Judgments, examines the increasing use of discretionary power, and the decision to grant an extremely judicial discretion as a means of resolving questions of wide latitude in its use, permits diametrically opposed theories evidentiary admissibility in criminal proceedings. Focusing of admissibility to be advanced daily, while precluding higher particularly upon the Supreme Court of Canada's landmark courts from attempting any form of justifiable review. decision regarding the admissibility of an accused person's criminal record in R. v. Corbett, [1988] 1 S.C.R. 670, it The thesis was written in the form of a judgment to a considers the benefits and drawbacks of utilizing a broad form hypothetical case at the Supreme Court of Canada. This of discretion, as opposed to a fixed rule of admission, in the narrative device allowed Peter to explore the issue of judicial evidentiary arena. While generally warm to the idea of discretion from three distinct voices, one representing a utilizing discretion to resolve evidentiary issues, Peter majority opinion promoting a more controlled form of concluded that Canadian courts have paid too little attention to discretion, with a concurring position proposing a return to what it actually means to “exercise discretion” and have failed rules, and one dissent advocating the status quo. Peter to consider whether they intend this tool to simply provide concluded the thesis by suggesting a solution to that particular room to deal with unforeseen fact scenarios, or to allow judges problem at stake in Corbett itself, and discussing the “free choice” to apply different theoretical models to particular usefulness of his theory in respect of other areas of evidentiary questions of fact. While Peter believes that discretion and admissibility.

Student Successes

Auckland Law School continued its run of Eden Crescent), by winning the final. However, the written submissions of success in student skill-based Chen Palmer & Partners National of the Auckland team were ranked competitions this year with some wins Human Rights Moot. They also fourth across the 33 teams in the region and some excellent placements. finished among the top 12 teams in the and all of the judges commented Richard Hellaby and Paul Ryan were Philip C. Jessup International Law favourably on Auckland's standard of part of the four-member team that won Moot Court Competition in Washington delivery, responses to questions and the international final of the Global DC (from a starting group of 102 level of argument throughout the Business Challenge Competition, held teams). In what was a very close moot, competition. in Seattle, Washington State, this year. the Auckland team lost against Austria Auckland is now the first university to in the first of the final rounds. Sabrina Muck (who now works for the have won this competition two years in boutique commercial law firm, Burke a row. Aditya Basrur and Sally Morris mooted Melrose) has had an article based on in the Asia-Pacific round of the her LLB(Hons) dissertation accepted Issac Hikaka and Jesse Wilson Manfred Lachs Space Moot in April. for publication in the New Zealand continued their remarkable joint They were defeated in the semi-finals Journal of Tax Law and Policy. The performance, which has spanned by the National University of article is called 'The Netherlands-New several years (see the last two editions Singapore, which went on to win the Zealand Double Tax Agreement.'

30 Sheron Korpus and Tim Cameron. Photo: Scott Optican Auckland Alumni Make Partnership in New York Law Firms

Two Auckland alumni have the thought-provoking. I also have very grappling with the various cross-border spectacular achievement of having fond memories of many of the issues that accompany those kinds of made partnership at prestigious New professors who taught me - including cases.” Like Sheron he values the York law firms. The Faculty warmly Julie Maxton, Scott Optican and Peter challenge and diversity of the work that congratulates Tim Cameron, who is Watts, in particular. I don't think any he does and also credits his time at now a partner in Cravath, Swaine & of us really realized at the time the Russell McVeagh with equipping him Moore, and Sheron Korpus, who is a quality of the legal education we were to compete with graduates from the top partner at White & Case. receiving.” U.S. law schools.

Both Tim and Sheron have careers Sheron went on to comment that the Becoming a partner at White & Case which have followed a remarkably training he received at Kensington was a personal accomplishment for similar trajectory. Both graduated from Swan was “first rate,” before adding: Sheron because when he first joined the Auckland Law School (Sheron in 1991 firm there were hardly any Kiwis and Tim in 1994). Both then spent “I believe that Auckland alumni can working in New York law firms and he some time working in large Auckland compete with the brightest graduates was somewhat of an unknown quantity. firms (Sheron at Kensington Swan for from such revered law schools as He put a lot of work into becoming a four years in their litigation Harvard or Yale. Today, New Zealand partner but says that it was “truly worth department, and Tim at Russell graduates are not as uncommon as it. I work along side smart, creative McVeagh for three years, also in when I first applied for a position. A litigators who are terrific mentors and litigation, whilst also completing his New Zealand candidate should colleagues.” Unsurprisingly, these M.ComLaw(Hons) at Auckland), approach an opening confident that he sentiments are also echoed by Tim. before travelling to the US to complete or she is not less qualified than a U.S. an LLM at top American law schools candidate.” Apart from becoming a partner at (Sheron at the University of Virginia, White & Case, some of the highlights graduating in 1996, and Tim at the Sheron is in the litigation department in of Sheron's career to date have been University of Chicago, graduating in White & Case, practising commercial arguing a case in the New Zealand 1998). Both then took up positions in litigation, international arbitration, Court of Appeal six months after being the New York law firms where they intellectual property and bankruptcy admitted to the bar and achieving a eventually became partners (Sheron litigation. He remarks that he is a reversal of the High Court decision, becoming a partner in 2003, and Tim in “generalist”, enjoying the variety and arguing in the Second Circuit Court of 2005). the opportunity to learn about different Appeals and his first jury patent case in industries and issues: “I could be the US - “explaining genetic I asked them what they took from their dealing with a complicated engineering to a jury was quite a experience at Auckland Law School privatization dispute one day and a challenge.” and Sheron remarked that: patent case concerning genetically modified corn the next day. At the end, For Tim, a Cleary Memorial Prize “I loved Auckland Law School. I was it is all dispute resolution, and the same winner in New Zealand in 1995: lucky to learn from terrific professors skills apply.” (Julie Maxton, Peter Watts, Francis “The biggest highlight of my work in Dawson, Brian Coote stand out in my Tim is also in the litigation department the U.S. to date was appearing before mind) who had an evident passion for in Cravath, Swaine & Moore, the United States Supreme Court (albeit the law and passed it on to their practising “general commercial as junior counsel) in 2001. I have been students. They were also great people. litigation covering a wide range of told that I am the first New Zealander Auckland Law School taught me the practice areas, including, for example, ever to appear before the U.S. Supreme law block by block, and, by the end of securities and antitrust litigation, tax Court. It was an incredible experience, my first year, it all came together so I litigation, and defending clients and something I would very much like had an appreciation of how the involved in regulatory investigations to repeat. different subjects fit with each other. being conducted by the U.S. Securities By then, I had no doubt that I would and Exchange Commission and the He concludes by saying that: become a litigator and continue to Department of Justice.” Tim has analyze cases and legal arguments.” represented several significant “Sheron and I are the only two Kiwi European clients who do business in litigation partners in New York, I Tim endorsed these sentiments: the U.S. and says that he particularly believe, and I hope we're the first of enjoys “the challenge of helping non- many more to come. It's a great place “Auckland Law School was U.S. businesspeople understand the to practise law.” challenging, stimulating, and deeply complexities of American law, while Julia Tolmie

31 JF Northey Memorial Book Award

Professor Rick Bigwood was the winner of the 2004 JF Northey Memorial Book Award for his book Exploitative Contracts, Oxford University Press, Oxford, 2003.

The book has also received favourable reviews. For example, David Campbell [2005] 64(1) Cambridge Law Journal 243-245 describes it as a “fine book” which has the virtues of being comprehensive and authoritative, whilst “refus[ing] to be swamped by the amount of material it discusses.” Although it engages with theory and law at an academic level, it is also a profoundly practical book. Campbell remarks that:

“Anyone familiar with the practical difficulties of the legal regulation of economic activity in general, and of regulating exchanges by means of the law of contract in particular, finds it difficult not to assume a superior attitude when reading much of the recent political philosophical literature addressing inequality and exploitation. There, all sorts of desirable “end- states” are set out, often in the most careful detail, drawing the nicest possible distinctions; but this effort seems wasted as it is quite impossible to conceive how those states might as a practical matter be brought about. The concept of exploitation which Bigwood puts forward is resolutely “juridical” or “legalist” in that it is based on an authoritative discussion of the law, and eschews “utopian” speculation in order to put forward an argument that, so far as one can say at this early stage, is capable of surviving the first stage of being put into practice, since it can be stated in coherent doctrinal terms.”

Bigwood's argument, “given concrete doctrinal application,” is described as “powerful.” One of its most important contributions, according to Campbell, is that it:

“revives liberalism - in Bigwood's case “the classical liberal conception of contract” - but in a way that seeks to avoid that telling points made in the critique of liberalism that has, for good and, increasingly, ill, brought us to our present situation.” Launch of Te Tai Haruru - The Journal of Maori Legal Writing

A new journal, Te Tai Haruru, is being published within the Faculty. The journal deals with legal issues relating to Maori and is published in association with the International Research Institute for Indigenous Education.

Te Tai Haruru is the first periodical publication to explore contemporary legal issues that impact on Maori from within a tikanga-based framework. Described by Justice Edward Durie, who presented the keynote speech at Te Tai Haruru's launch, as “a significant step forward for Maori scholarship”, the journal presents leading scholarship on topics relating to the development of tikanga (Maori customary law) as a living system of law within Aotearoa/New Zealand. Contributions are subject to external review.

The Journal's first volume contains two sections. Section A focuses on the controversial Ngati Apa v Attorney General decision of the Court of Appeal, which held that Maori have the right to apply to the courts to determine the extent of customary interests in the foreshore and seabed land in Aotearoa/New Zealand. Section B contains four essays examining the development of “Mana Whenua” as a principle of Maori customary law.

The Journal will be published yearly and can be ordered through the Faculty's website.

32 Faculty of Law Publications and Conference Papers

Allan Beever IUCN World Conservation Forum, Neil Campbell Bangkok, 16-18 November 2004. 'A Rights-Based Approach to the 'Monetary Remedies for Wrongful Recovery of Economic Loss in 'Sustainable New Zealand: Perspectives Declinatures of Insurance Claims' Negligence' (2004) 4 Oxford University and Prospects,' Ecoshow, Manukau (2004) 15 Insurance Law Journal 185- Commonwealth Law Journal 25-49. City, 17 February 2004. 202.

With Rickett, C., 'History and Theory - Warren Brookbanks 'The Law Regulating Insurance Fraud,' Comments on Stephen Waddams' Insurance and Savings Ombudsman Dimensions of Private Law: Categories 'Criminal Procedure (Mentally Conference, Auckland, 28 September and Concepts in Anglo-American Legal Impaired Persons),' chapter 16 in 2004. Reasoning,' Obligations II, Principle Robertson, J.B., (ed.) Adams on and Policy in Private Law, University Criminal Law, Brookers, Wellington, 'Speculating on the Unfair Prejudice of Melbourne, Melbourne, 15th July 2004, 16-11 to 16-360. Jurisdiction' [2004] Company and 2004. Securities Law Bulletin 81-83. 'Developments in Criminal Law,' Legal Rick Bigwood Update Seminar Series, University of Brian Coote Auckland, Auckland, 1 September 'The Elements of Duress in New 2004. 'Assumption of Responsibility and Pure Zealand Law Today: A Case for Economic Loss in New Zealand' [2005] Ockham's Razor?' (2004) 10 New 'Mentally Impaired Offenders in New New Zealand Law Review 1-23. Zealand Business Law Quarterly 326- Zealand - Recent Developments,' 335. Auckland District Law Society CLE Peter Devonshire Seminar on Mental State Defences, 'Pre-contractual Misrepresentation and Crowne Plaza Hotel, Auckland, 27 July 'The Modern Law of Public Tendering: the Limits of the Principle in With v. 2004. The Principles Defined' (2004) 10 New O'Flanagan' (2005) 64 Cambridge Law Zealand Business Law Quarterly 114- Journal 94-125. 'Section 16 Reviews - Civil Liberties 123. and other Legal Issues,' Section 16 'Contracts by Unfair Advantage: From Symposium/Discussion Forum - Policy 'Pre-emptive Orders Against Evasive Exploitation to Transactional Neglect' and Practice Considerations, Ministry Dealings: An Assessment of Recent (2005) 25 Oxford Journal of Legal of Health, Wellington, 31 March 2004. Trends' [2004] Journal of Business Law Studies 65-96. 357-377. 'The Law of Research: A Guide: Book 'Contractual duress and the Supreme Review' (2004) 5 New Zealand Treasa Dunworth Court' [2005] New Zealand Law Bioethics Journal 31-34. Journal 140-141. 'Correspondent Report for New With Diesfeld, K., Pearse, J., & Zealand' (2002) 5 Yearbook of Klaus Bosselman MacKay, R.D., The Implications of the International Humanitarian Law 577- Sentencing Act 2002 regarding the 578. 'Ethical Implications of Energy for Partial Defences of Provocation and Sustainable Development,' in Infanticide, report for the Deputy 'The International Criminal Court: Bradbook, A.J. Lyster, R. Ottinger, R. Director of Mental Health, October Book Review of McGoldrick, Rowe & & Wang X., (eds) The Law of Energy 2004. Donnelly (eds) The Permanent for Sustainable Development, International Criminal Court' (2004) Cambridge University Press, 2004, 16- Jock Brookfield New Zealand Law Journal 375-376. 28. 'Maori claims and the “special” 'Customary International Law In 'In Search for Global Law: The juridical nature of foreshore and Domestic Law: A Call For Cross- Significance of the Earth Charter' seabed' [2005] New Zealand Law Border Conversations,' Expert (2004) 8:1 Worldviews: Environment, Review 179-188. Workshop on International Challenges Culture, Religion 62-75. to National Legal Systems, ANU, Bernard Brown Canberra, August 2004. 'Ecological Justice as the Foundation for Global Ecological Governance,' Into the Roaring Forties, The Legal With Geiringer, C., 'Report on the Global Ecological Governance for Research Foundation 1964-2004, The Expert Workshop,' Beeby Colloquium, Eco-Justice and Public Health, Legal Research Foundation, Auckland, Wellington, September 2004. Montreal, 11-13 July 2004. 2004, 18 pp. With Matthews, R. & McCormack, T., 'Sustainabilitiy and Justice: The 'Sufficient Pussy' & 'Master Singer,' in 'Implementation of the Biological Concept of Ecological Justice,' Global Wells, P., (ed) The Cat's Whisker, Weapons Convention in domestic law: Ethics, Development, Environment and Random House, Auckland, 2005, 79, An Illustrative Model Legislation,' the Earth Charter, University of 80. Biological Weapons Convention Aberdeen, 14-17 April 2004. Regional Workshop, Asia-Pacific 'Which Way Home?' in Lay, G., (ed) Centre for Military Law, University of 'Sustainability Ethics and Judicial Home, Random House, Auckland, Melbourne, February 2005. Review Process,' Judges Symposium, 2005, 41. 'The Organization for the Prohibition of

33 Chemical Weapons,' in Van Krieken & Symposium on the Forensic Sciences, Workplace,' [21/5/04] Brooker's McKay, (eds) The Hague: Legal Wellington, 28 March - 2 April 2004. Employment Law Bulletin 1-5. Capital of the World, The Hague, 2005, 439-449. 'The Shipment of Nuclear Material 'Mental Harms in the Workplace, through the Pacific Ocean: Seeking Revisited,' [8/9/04] Brooker's 'The ICC Statute and Commonwealth Advance Assurances of Support in a Employment Law Bulletin 1-3. States: New Zealand,' in Brandon & Du Non-Release Incident,' The Legal Lali, Plessis, (eds) The Prosecution of Office of the Solicitor General of Fiji, Kerensa Johnston International Crimes. A Practical 2004, 2-9. Guide to Prosecuting ICC Crimes in 'Local Government and the Treaty of Commonwealth States, Commonwealth 'The Role of International Courts and Waitangi: Book Review,' [2004] Secretariat, 2005, 173-187. Tribunals in Relation to Armed Journal of Political Science. Conflict,' The Challenge of Conflict: With Geiringer, C. & McLachlan, International Law Responds, Adelaide, With Tomas, N., 'Ask that Taniwha: 'International Law and the New 26-28 February 2004. Who owns the Foreshore and Seabed of Zealand Legal System,' High Court Aotearoa? (Part Two)' [2004] Journal Update, Institute of Judicial Studies, David Grinlinton of Maori Legal Writing 10-81. Wellington & Auckland, July 2005. 'Crossing Boundaries: The Foreshore 'An Analysis of International Law Ian Eagles and Seabed debate in New Zealand', Mechanisms and their relationship to ALTA Conference, Charles Darwin Indigenous Peoples,' Seminar on the 'Talking Past Each Other: How Not to University, Darwin, 8-11 July 2004. UN Permanent Forum and Indigenous Construct the Intellectual Property-Anti Peoples' Rights, Victoria University, Trust Interface,' in Hansen, H., (ed) 'The Foreshore and Seabed Policy and Wellington, 16 April 2004. International Intellectual Property Law the Doctrine of Res Communes' (2004) and Policy, Juris, New York, 2005. 5:9 Butterworths Resource 'Future Directions: The Treaty of Management Bulletin 97-99. Waitangi/Te Tiriti o Waitangi,' Treaty 'Reclaiming the Baroque: Copyright Seminar Series, St George's and Moral Rights for Musicologists' 'Property Law Teachers Workshop', Presbyterian Church, Takapuna, 14 [2005] New Zealand Business Law Real Property Law Teachers September 2004. Quarterly 19-29. Conference: 'Real Property Rights in an Age of Uncertainty', University of Amokura Kawharu 'Incidental Copying: The Forgotten Canterbury, Christchurch, 1-3 July Defence to Copyright Infringement' 2004. 'Cotton-picking WTO,' [2005] New [2004] New Zealand Business Law Zealand Law Journal 173. Quarterly 236-257. 'Private Property Rights versus Public Access: The foreshore and seabed Jane Kelsey Jim Evans debate' (2004) 7 New Zealand Journal of Environmental Law 313-341. A People's Guide to the Pacific's 'Untangling the Foreshore Issue,' Economic Partnership Agreement http://www.publicaddress.net/default,12 'Leasehold Estates,' in Hinde, G.W., Negotiations between the Pacific 48.sm, May 25, 2004. McMorland, D.W., Campbell, N.R. & Islands and the European Union Grinlinton, D.P., Hinde, McMorland & Pursuant to the Cotonou Agreement Caroline Foster Sim Land Law in New Zealand, 2000, World Council of Churches Looseleaf Service, Wellington, Office in the Pacific, Suva, 2005, 85 'The Partial Awards of the Eritrea- LexisNexis, 2003, 60,001-69,646, and pp. Ethiopia Claims Commission on the Vol 2, Wellington, LexisNexis, 2004, 1- Treatment of Prisoners of War' [2004] 283. 'World Trade and Small Nations in the New Zealand Yearbook of International South Pacific Region' (2005) XIV:II Law 139-147. 'Environmental Law in New Zealand', The Kansas Journal of Law and Public Annual Conference of the Japan - New Policy 247-306. 'Transnational Risk and the Zealand Society, Sakata, Japan, 23 Proceduralisation of International October 2004. Michael Littlewood Environmental Law,' Australian and New Zealand Society of International Bruce Harris 'Tax Competition: Harmful to Whom?' Law 12th Annual Meeting, Canberra, (2004) 26 Michigan Journal of 18-20 June 2004. 'The Treaty of Waitangi and the International Law 411-487. Constitutional Future of New Zealand' 'Parliament's Involvement in Treaty- [2005] New Zealand Law Review 189- 'How Simple Can Tax Law Be? The making and New Zealand's Indigenous 216. Instructive Case of Hong Kong' (2005) People or Peoples,' Second Annual Tax Notes International 689-702. Conference on the Primary Functions Bill Hodge of Government, Victoria University, 'Hard Times, Absconding Expatriates Wellington, October 2004. 'The Employment Relations Law and the Possibility of PAYE in Hong Reform Bill: A Few Key Terms,' Kong' (2005) 35 Hong Kong Law 'Expert Evidence in World Trade [16/2/04] Brooker's Employment Law Journal 129-150. Organisation Dispute Settlement Bulletin 1-3. Processes,' The 17th International 'Random Drug Testing in the 34 Janet McLean Ken Palmer 'Flawed Logic Impedes Animal Welfare Act Sentencing' [2004] NZLJ 357-360. 'Divergent Legal Conceptions of the 'Local Government Law and Resource State: Implications for Global Management' [2004] New Zealand Law 'Five Years of the “New” Animal Administrative Law,' in Kingsbury, B. Review 4. Welfare Regime: Lessons Learned and Stewart, R., (eds) Special Issue From New Zealand's Decision to Globalisation and Administrative Law, 'Maori cultural issues under the Modernize Its Animal Welfare (2005) 68 Law and Contemporary Resource Management Act' (2004) 5 Legislation' (2005) 11 Animal LJ 7. Problems 153-179. Also appears as an LexisNexis Resource Management Institute for International Law and Bulletin 173-175. Elsabe Schoeman Justice NYU School of Law Jean Monnet Working Paper, (2005) 2 'Current Issues in Resource 'Notes and Comment: Lorentzen v Global Administrative Law series. Management Law,' The Faculty of Law Lydden: Dead and Buried?' (2004) 10 Spring Seminar Series, University of New Zealand Business Law Quarterly 'The State, The Citizen and Auckland, 8 September 2004. 285-293. Transnational Government,' International Challenges to the 'Environmental Damage in New 'The South African Conflict Rule for Australian Legal System, ANU Centre Zealand: Liability, compensation and Proprietary Consequences of Marriage: for International and Public Law & restoration,' International Bar The Need for Reform' (2004) 1 IPRax Gilbert and Tobin Centre of Public Association Conference, Auckland, 25 65-66. Law, Canberra, 18-19 August 2004. October 2004. 'The South African conflict rule for 'Parliamentary Conceptions of the 'Recent Trends in Environmental Law - proprietary consequences of marriage: Executive,' Parliament Conference: NZ An academic's perspective,' Learning from the German experience' Centre for Public Law, Victoria Environment Court Judges and (2004) 1 TSAR 115-140. University of Wellington, 30 October Commissioners Conference, Napier, 9 2004. August 2004. 'Tort Choice of Law in New Zealand: Recommendations for Reform' [2004] 'New Public Management New Zealand Paul Rishworth New Zealand Law Review 537-561. Style,' in Tomkins, A. and Craig, P., (eds) The Executive and Public Law: 'Church and State in New Zealand: The With Myburgh, P.A., 'Jurisdiction in Power and Accountability in legal framework and recent Trans-National Cases' [2004] New Comparative Perspective OUP, Oxford. developments,' Religion in the Public Zealand Law Journal 403-406. Sphere: Challenges and Opportunities, Paul Myburgh Brigham Young University, Provo, 'How International is Private Utah, USA, 3-6 October 2004. International Law?' Private With Schoeman, E., 'Jurisdiction in International Law Conference, Trans-National Cases' [2004] New 'Exclusive Cognisance: Some recent University of Johannesburg, 2005. Zealand Law Journal 403-406. developments,' Second Annual Conference on the Primary Functions 'Book Review: Drexl and Kur (eds) 'Arresting the Right Ship: Procedural of Government: Parliament, NZ Centre International Property and Private Theory, the In Personam Link and for Public Law, 29-30 October 2004. International Law' [2005] NZLJ 210. Conflict of Laws,' Tulane Maritime Law Colloquium in Honour of Peter Sankoff With Tobin, R., 'A Holiday in New Professor Robert Force, New Orleans, Zealand: The Implications of New October 2004. With Mewett, A., 'Assessing the Zealand's Accident Compensation Credibility and Weight of a Witness' Scheme' (2005) 4 IPRax 374-375. 'Shipping Law' [2005] New Zealand Evidence and Taking Witness Law Review 287-306. Testimony for Trials Outside of Paul Sumpter Canada,' in Witnesses (Updates). 'Admiralty in Wonderland' [2005] Toronto, Carswell, 2004. 'Patents for Methods of Medical Lloyd's Maritime and Commercial Law Treatment: Pfizer v Commissioner of Quarterly 302-308. 'Five Years of the “New” Animal Patents' (2004) 10 New Zealand Welfare Regime: Lessons Learned from Business Law Quarterly 178-181. Scott Optican the New Zealand Experience with Farm Animals and Animal Welfare 'Intellectual Property and the New 'The New Exclusionary Rule: Legislation,' in Favre, D., (ed.) A Morality' (2005) 11 New Zealand Interpretation and Application of R v Global Perspective on Animals in the Business Law Quarterly 216 - 232. Rasheed' [2004] New Zealand Law Legal System, Animal Legal and Review 451-535. Historical Web Center, Detroit, 2004, 'Designs Act 1953' in Copyright and 25-67. Design, Issue 23, LexisNexis, 'Science, Justice and the New Zealand Wellington, December 2004, 51,601- Bill of Rights' [2004] Australian 'Victims and Rights: Which Way 51,704; 52,201-52,602; 53,001-53,002. Journal of Forensic Sciences 79-84. Forward?' New Zealand Law Foundation Seminar, Auckland, March 2004.

35 'Intellectual Property Law,' chapter 9 in Nin Tomas the Treaty of Waitangi, Oxford Corporate Governance (2nd edn), University Press, Melbourne, 2004, CCH, New Zealand, December 2004, With Johnston, K., 'Ask that Taniwha: 366-387. 197 - 212. Who owns the Foreshore and Seabed of Aotearoa? (Part Two)' [2004] Journal With Belgrave, M.P., and Kawharu, of Maori Legal Writing 10-81. M., (eds.) Waitangi Revisited: Mike Taggart Perspectives on the Treaty of Waitangi, 'Trauma Associated with Land Loss in Oxford University Press, Melbourne, 'The Tub of Public Law,' in Dyzenhaus, Aotearoa (New Zealand)' [2004] 2004, xiii-xxi, xxi-402 pp. D., (ed) The Unity of Public Law, Hart Australasian Society for Traumatic Publishing, Oxford, 2004, 455-479. Stress Studies 3-6. 'Submission on the foreshore/seabed controversy,' International Research 'Mr. Alexander Chaffers and the Peter Watts Institute for Maori and Indigenous Genesis of the Vexatious Actions Act Education, Te Takutai Moana: 1896' (2004) 61 Cambridge Law 'Authority and Mismotivation' (2005) Foreshore & Seabed, 4th National Hui, Journal 656-684. 121 Law Quarterly Review 4 - 9. University of Auckland, 13 March 2004. 'The New Zealandness of New Zealand 'Birks: Unjust Enrichment' (2005) 121 Public Law' (2004) 15 Public Law Law Quarterly Review 163-168. 'Evidence on the Native Land Court,' Review 81-86. Waitangi Tribunal, Waiohau, February 'The Creep of Negligence into Agency 2004, 60pp. 'Prolegomenon to an Intellectual Law in Australia' (2005) 26 Australian History of Administrative Law in the Bar Review 185-192. 'Controversial legislation needs further Twentieth Century: The case of John discussion' [2004 May] New Zealand Willis and Canadian Administrative 'Illegality and the Change of Position Herald A16, 7. Law' (2005) 43 Osgoode Hall Law Defence in the Law of Restitution' Journal 223-67. (2005) 11 New Zealand Business Law 'Myths, national origins, common law Quarterly 115-117. and the Waitangi Tribunal' (2005) 11:4 'From 'Parliamentary Powers' to E- Law: Murdoch University Electronic Privatization: The Chequered History 'Annual Survey of New Zealand Journal of Law 38pp. of Delegated Legislation in the Restitution Law' [2005] Restitution Twentieth Century' (2005) 55 Law Review 233-240. 'The invasion of Maungapohatu and University of Toronto Law Journal 575- thetrial of Te Rua Kenana,' Waitangi 627. 'The Hunt for Deeper Pockets: When Tribunal, Maungapohatu, 21 February One's Contracting Party Lets One 2005, 42pp. With Klosser, J., 'Controlling Down' [2005] Company & Securities Persistently Vexatious Litigants,' in Law Bulletin 35-36. 'Wi Parata is dead, long live Wi Groves, M., (ed) Law and Government Parata,' Foreshore and Seabed in Australia: Essays in Honour of Enid Dick Webb Seminar, NZ Centre for Public Law, Campbell, Federation Press, Sydney, Victoria University of Wellington, 10 2005, 272-300. Update of 'The Law of Partnership and December 2004. Joint Ventures,' Laws of New Zealand, Rosemary Tobin Butterworths, Wellington, 2003. 'When parliamentary supremacy and the rule of law collide: Land Titles 'Wrongful Birth in New Zealand' Update of Family Law Service, Protection Act 1902 and Foreshore and (2005) 12 JLM 294-304. Butterworths, Wellington 2002. Seabed Act 2004,' Law's Empire: Canadian Law & Society Association 'Public Discussion as a Defence to a 'The Civil Union Bill: Why all the conference, Harrison Hot Springs, BC, Nineteenth Century Defamation Action' fuss?' (2004) 4 Butterworths Family 29 June 2005. (2005) 21 NZULR 385-408. Law Journal 262-264. 'Whither the Treaty of Waitangi and its Julia Tolmie 'Culture and tradition and coerced principles,' Auckland District Law marriages' (2005) 5 Butterworths Society seminar, Auckland, 5 July With Stubbs, J., 'Defending Battered Family Law Journal 48-50. 2005. Women on Charges of Homicide: The Structural and Systemic Versus the Hanna Wilberg 'Law and National Identity - where Personal and Particular,' in Chan, does the Treaty of Waitangi fit in,' Chunn, & Menzies (eds.) Women, 'Interim relief in administrative law' British World Conference IV, Auckland, Madness and Law, Cavendish, 2004, [2005] NZLJ 125-128. 16 July 2005. 191-209. David Williams 'Indigenous customary rights and the 'Is the Partial Defence an Endangered common law in Aotearoa New Defence? Recent Proposals to Abolish 'Unique Treaty-based Relationships Zealand,' in Brand, P., Costello, K. & Provocation?' [2005] 1 New Zealand Remain Elusive,' in Belgrave, M.P. Osborough, W.N., (eds) Adventures of Law Review 25-52. Kawharu, M. & Williams, D.V., (eds) the Law, Four Courts Press, Dublin, Waitangi Revisited: Perspectives on 2005, 177-198.

36 Controlling Persistently Vexatious Litigants - some historical notes

This is an excerpt (without footnotes) proceedings before trial was “sufficient The summative report of the from a joint paper entitled for all practical purposes”. Department of Justice to the Law “Controlling Persistently Vexatious In 1954 and 1955, the question was Revision Committee - in true “Yes Litigants” which has just appeared in again raised by Judges and Magistrates Minister” fashion - described the New Matthew Groves (ed.), Law and concerned about several vexatious Zealand Law Society's view as “mildly Government in Australia: Essays in litigants, including one Thomas John favourable”, and marginalised the Honour of Enid Campbell (Federation Downes, who had brought over 50 adverse reactions of most Registrars as Press, Sydney, 2005) 272-300. Jenny actions against and in relation to his ex- either based on a lack of experience Klosser wrote her LL.B.(Hons) wife. The Law Revision Committee with vexatious litigants or sympathy dissertation on the topic of vexatious approved the introduction of legislation for the breed. It appears the litigants in 2002. She worked for the and the matter was forwarded for Department, whose support for New Zealand Immigration Service drafting. The Minister of Justice and a legislation in 1954 had been stymied by determining claims for refugee status, body described as the Steering ministerial resistance, remained of the and is presently enjoying her O.E. Committee demurred, reasoning that view that legislation was needed. The the small number of cases could be Statutes Revision Committee agreed It is possible to go through Law School dealt with under the inherent with the officials, and directed that the without learning that the statute book jurisdiction and did not justify legislation be drafted. This time it was contains a power to stop persistently legislation which would encroach prepared. vexatious litigants from undertaking unduly on access to the courts. A future civil litigation (without leave of handwritten note by the Hon JR One of the issues considered in the the court). This draconian power can be Marshall (then Minister of Justice, and drafting was whether vexatious found in one of the two sections later Prime Minister) reads: “I am not criminal proceedings (as distinct from numbered 88A in the Judicature Act keen on legislation to restrict the right civil proceedings) should be counted, 1908! It was enacted in 1965, and of access to the Courts & I do not think and whether those declared persistently follows closely the form of a late one or two cases should be invoked to vexatious would still be able to bring nineteenth century English statute (the make what I would consider bad law”. private criminal prosecutions. These Vexatious Actions Act 1896). issues had split English, Canadian and Legal practitioners in Auckland raised Australian courts. In the deliberations The unspoken assumption upon which the matter again in 1965, apparently of the Law Revision Committee, the these statutory provisions rest is that prompted by the activities of an errant Solicitor-General thought it was superior court judges have no inherent colleague. The Law Revision advisable to deal with vexatious private jurisdiction to prevent a litigant from Committee consulted the New Zealand criminal prosecutions at the same time bringing future legal proceedings. The Law Society and the High Court as vexatious civil proceedings. The High Court's inherent jurisdiction was Registrars as to the need for legislative minutes of a meeting on 2 July 1965 thought to be limited to striking out action. The almost unanimous view of state the Committee “generally particular proceedings as vexatious and the Registrars around the country was favoured a proposal that section 51 of to prevent vexatious applications that there was little or no difficulty the Supreme Court of Judicature Act within an extant proceeding (so called with vexatious litigants, and that [sc. the English provision] should also Grepe v Loam orders), and did not legislative change was unnecessary. be applied (possibly with a more mild extend to restraining the filing of future Significantly, as the pressure for choice of words) to criminal proceedings. This was held to be the legislative action was coming from proceedings of an irritating nature”, legal position in New Zealand: Stewart some Auckland practitioners, the and it was recommended that the v Auckland Transport Board [1951] Registrar at the High Court in Attorney-General's power to stay NZLR 576 (HC). (Note recently in Auckland thought the problem was indictable proceedings be extended to Bhamjee v Forsdick [2003] EWCA Civ “insufficient to warrant the introduction include summary proceedings as well. 1113 the English Court of Appeal of special legislation”. In a frank memorandum to his refused to follow antipodean authority Minister, the Secretary of Justice on the point.) The New Zealand Law Society was recommended that “the question of very half-hearted in its support. The vexatious criminal prosecutions be Subsequently, the judge in Stewart's President of the Society wrote that, deferred for further study”, and that case wrote to the Attorney-General although the “Auckland view” recommendation carried the day. raising the need for legislative action favoured legislation along the English Consequently, a person declared a along the lines of the English Act of lines, the Wellington District Law persistently vexatious litigant under s. 1896. It was decided within the Society was “not quite so positively in 88A remains free to institute criminal Department of Justice, however, that favour” as there seemed no “pressing proceedings. (This has prompted a the small number of actions brought by need”. However, he concluded, “if the recent judicial call for the Legislature Stewart would not have satisfied the need is there” Wellington agreed that to look at the matter urgently: Brogden requirement of habitual vexation in the the English legislation was “a v Arnold (No 2) [2003] NZAR 536, English statute, and that the inherent satisfactory model”. [29] (HC).) jurisdiction to strike out vexatious

37 Section 88A was inserted into the of execution, suspension of the (1989) 15 Monash ULR 48). One Judicature Act in 1965. Somewhat injunction and other temporary relief. reason for this may be that in New surprisingly, no one in the House spoke Only then did he heed the Court of Zealand (in contrast to some Australian up for the constitutional right of the Appeal's advice and apply to have the and Canadian jurisdictions) only the citizen to access courts. Indeed, judgments set aside on the ground of Law Officers - the Attorney-General or surprise was expressed the other way; alleged perjury. He issued also a writ the Solicitor General - can apply for an that the situation had not been dealt for an illegal attempt to imprison him. order under s 88A. The tiny number of with by Parliament earlier. When Throughout the dispute Wiseman made applications may reflect an moving the introduction of the Bill, the serious allegations against his “appropriately conservative approach Minister of Justice, the Hon JR Hanan, opponents, their counsel and some by successive Attorneys-General, no said the general view of the High Court members of the judiciary (for which he doubt mindful of the fundamental Registrars and the New Zealand Law was imprisoned for three months for constitutional importance of the right of Society was that New Zealand had contempt of court): Re Wiseman [1969] access to the Courts”: Brogden v been “fairly free of vexatious litigants, NZLR 55 (CA). Mr Wiseman's Attorney-General [2001] NZAR 809, but that it was desirable to introduce principal judicial target was Justice TA [20] (CA). some measure to curb them”. Dr Gresson, whose subsequent suicide Martyn Finlay, MP for Waitakere, shook the legal establishment and History shows that the immediate explained that the Bill was prompted intensified Wiseman's accusations, impetus for enactment of this statutory by the activities of an individual who making them all the more stinging. power was the protection of public has been well known to Auckland Eventually, he was struck off the roll: officials from vexatious legal attack. practitioners, including himself, over a Re Wiseman [1970] NZLR 286 (FC). Wiseman defamed successive local number of years. body Mayors and their Councils, and The Attorney-General applied for the said very nasty things about some That unnamed individual appears to first order under s 88A against judges. His scandalous statements have been Jack Stuart Wiseman, a Wiseman, which was granted in the about judges in affidavits were purged solicitor of Auckland. Mr Wiseman had High Court by Justice Woodhouse: Re from the publicly accessible court had a long running dispute with a local Wiseman (High Court, Auckland, records and remain sealed to this day. authority, and accused past and current M672/67, 20 February 1968). Mr Wiseman even petitioned Parliament Mayors and their Councils of being Wiseman appealed, but the Court of for the removal of certain judges from “dishonest, corrupt and malicious”. He Appeal confirmed that the order was office. It is understandable that the was successfully sued for libel by the justified and necessary in view of “the Attorney-General, as the head of the past and present Mayors and they were whole history of this litigation”: Re profession and protector of the awarded 1,000 pounds damages: Wiseman (CA 10/68, 28 May 1969). judiciary, is particularly solicitious of Greville v Wiseman [1967] NZLR 795 the reputations of judges, who cannot (HC); Stredwick v Wiseman [1966] Since then, s 88A has been invoked on speak out publicly in their own NZLR 263 (HC). remarkably few occasions. Only three defence. more orders have been made (in 1993, Mr Wiseman applied unsuccessfully for 2000 & 2001), two more applications [If any alumni have information about, new trials on several grounds, have been filed but discontinued (in or recollections of, Mr. Wiseman and including perjury. He then appealed to 1985 & 2002), and one application is his disputes, Mike Taggart would like the Court of Appeal, which dismissed pending (Attorney-General v Palmer to hear from you. This is part of an on- his case and explained that the correct (High Court Auckland, CIV2003-404- going research project. Mike can be course of action to challenge a 588, 16 July 2004, Williams & contacted by e-mail judgment tainted by perjury would Baragwanath JJ -interim judgment). or have been an application to set aside This is far fewer than in England or phone 09-3737599 ext. 88028.] the verdict. Mr Wiseman then tried to Australia (on the latter, see S Smith, avoid enforcement of the original “Vexatious Litigants and Their Judicial judgments through applications for stay Control - The Victorian Experience” Mike Taggart & Jenny Klosser

Kerensa Johnston Receives Grant for Research within Taranaki

Kerensa Johnston has been awarded a research grant by Nga Pae o Te Maramatanga, the National Institute of Research Excellence for Maori Development and Advancement. Her research project, 'Maori Women Speak Back: Our Stories, Laws and Histories', examines legal issues affecting Maori women in the Taranaki area. It focuses on the extent to which women experience discrimination in the context of the Crown-Maori Treaty relationship and in the context of Maori customary relationships governed by tikanga Maori (Maori customary law). The bulk of the research will be completed while Kerensa is on sabbatical leave in 2005.

38 'Exporting' Our Comparative Crim pro Law Course

Senior Lecturer and Associate Dean Scott Optican is course on Comparative Bill of Rights law (Criminal becoming known for his teaching trips to overseas law Procedure) at the Bahcesehir University Faculty of Law in schools. He started with a one-year teaching stint, lecturing in Istanbul (Turkey). He will teach a similar course in January/ U.S. criminal law and criminal procedure to students at the February 2006 as a Visiting Professor at the University of University of Oregon School of Law (2000-01). In January Kansas School of Law. and February 2005, he taught an intensive Winter Term course in comparative Bill of Rights law (criminal procedure) Scott was also invited in May 2005 to give a lecture to as a Visiting Professor at the University of Western Ontario members of the ESR Forensic unit in Mt Albert, Auckland. School of Law in London, Ontario (Canada). Scott also gave Scott's talk dealt with the courtroom presentation of expert talks in 2005 to students and faculty at the William and Mary and forensic testimony and New Zealand Bill of Rights issues School of Law in Williamsburg, Virginia (USA) and the related to the handling and processing of Crown evidence in University of Kansas School of Law in Lawrence, Kansas criminal cases. He was treated to a tour of the ESR Forensic (USA). In December 2005, he will teach an intensive short facility.

Above: Scott Optican handing blood evidence as a fully gowned and masked member of the ESR forensic team Below: Scott poses with his Comparative Bill of Rights (Criminal Procedure) class from the University of Western Ontario School of Law, London, Ontario, Canada. Kevin Barnum - a provincial constable and canine handler with the Emergency Response Team of the Ontario Provincial Police - is visiting the class with his dog "Blast" - an explosive sniffing chocolate Labrador.

39 New Books Michael Belgrave, Merata Kawharu and David Williams, Waitangi Revisited: Perspectives on the Treaty of Waitangi, Oxford University Press, Melbourne. The Treaty is as controversial today as it was in 1989 when Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi was first published. It remains central to debates about New Zealand society and its future. Among the new issues to emerge in the last fifteen years are the inclusion of the Treaty in a large range of legislation, greater recognition by the Crown of its duty to recognise the Treaty, and the transformation of the claims process. This fully revised second edition explores these new issues without losing sight of the historical perspectives, and without losing any of the strengths, that made the first edition such an outstanding contribution to the Treaty debate.

The contributing authors, leaders in their respective fields, provide a range of perspectives on the social, legal and historical impact of the Treaty. The book is edited by, and has contributions from, Michael Belgrave, Merata Kawharu, and David Williams, and a Foreword by I.H. Kawharu. Other contributors include Allen Bartley, Tom Bennion, F.M. (Jock) Brookfield, Mason Durie, Shane Jones, I.H. Kawharu, Jane Kelsey, P.G. McHugh, Ani Mikaere, Margaret Mutu, Andrew Sharp, Maui Solomon, Paul Spoonley, Ann Sullivan, Paul Tapsell, Evelyn Tuuta, Ranginui Walker, and Grant Young.

Paul Sumpter, Trade Marks in Practice, LexisNexis NZ Limited, Wellington, 2004. Trade Marks in Practice aims to give readers a brief, accessible guide to the Trade Marks Act 2002. It was written with the practitioner of trade mark law in mind and is the first commentary on the new legislation, which came into force in 2003.

Because of the genealogy of the new statute questions arise as to where to look for guidance - European Community law, the United Kingdom, Australia, United States or simply the old law. As a reviewer has noted, this book “.. is packed with the relevant tests, cases, extracts from the IPONZ guidelines and analysis”. They also remarked that: “One of the strengths of this work is the identification of a myriad of issues, ambiguities and inconsistencies in the Act and the provision of guidance on their likely significance”. Visit by the Radford University Group

In 2005 a group of criminal justice students from the University of Radford came to New Zealand and Australia for several weeks to research the criminal justice systems in these countries. Scott Optican arranged visits for the American students to the Manukau District Court, ESR Forensic in Auckland, and the Auckland High Court. The students also received lectures on various aspects of the New Zealand criminal justice system from Scott and Auckland University law lecturers John Ip, Julia Tolmie and Khylee Quince. The Radford visit was planned and coordinated by Hana Colmar, Programme Coordinator for Educational Travel at the University of Auckland Centre for Continuing Education.

Scott Optican (kneeling center) poses in front of the Manukau District Court with students from the Radford University Department of Criminal Justice, Radford, Virginia (USA). Also pictured are Manukau District Court Judge David Harvey (far left) and Radford University Professor of Criminal Justice Bakhitah B. Abdul-Ra'uf (second left).

40 Visitors and Seminars

In conjunction with the Department of Justice Mental Health Standards central and local levels. He was Commercial Law in the Faculty of Project and, on the John D. and accompanied by his wife, a medical Business and Economics, the Faculty Catherine T. MacArthur Foundation specialist. Both were keen outdoor of Law runs a seminar series Research Network on Mental Health runners and cyclists, and they enjoyed throughout the year. Other seminars are and the Law. He is currently climbing Mt Taranaki and Mt Ruapehu also held, whether under the auspices participating in the MacArthur during the visit. of the Legal Research Foundation, the Foundation's Research Network on Centre for Environmental Law, the Mandated Community Treatment and Professor Tony Duggan, University Research Centre for Business Law, or on an ABA Task Force on Mental other organizations with which Illness and the Death Penalty. of Toronto: 'Exemplary Damages in members of the Faculty are involved, Equity.' such as the Law and Economics Professor David Brown, University Association and International Law Professor Duggan holds the Iacobucci Association. Many participants are of NSW: 'An Overview of Some Chair at the Faculty of Law, University Professors from other jurisdictions who Recent Developments in Australian of Toronto and is a Professorial Fellow are visiting the Faculty of Law. We Criminal Law'. at the Faculty of Law, University of have profiled a selection of visitors and Melbourne. He has published widely in seminars elsewhere in this edition of Professor David Brown has taught the areas of secured lending, consumer Eden Crescent. The following sets out protection, equity and trusts. His books some of the other seminars that took criminal law, criminal process, criminology and penology in the include Consumer Credit, place in 2004. It also profiles some of Butterworths, Sydney, 1999 (with the international guests who attended Faculty of Law at the University of NSW since 1974. He is a joint author Lanyon, E.) and Contractual Non- the Faculty this year to teach in the Disclosure, Longmans, Melbourne, postgraduate programme. of Criminal Laws (The Federation Press, Sydney, 1990; 1996; 2001; 2006 1994 (with Bryan, M. & Hanks, F.). Whilst in Auckland he also taught a Those interested in attending Faculty of forthcoming), the major teaching text in criminal law in NSW universities. postgraduate intensive course, 'Secured Law seminars may find details of Transactions'. upcoming events on the website: His other books include: The Prison www.law.auckland.ac.nz/ (click on Struggle (1982; with Zdenkowski, G.); “events”). Rethinking Law and Order (1998, with William J. Edwards, deputy public Hogg, R.); The Judgments of Lionel defender with the Los Angeles Murphy (ed, 1986, with Blackshield, Professor Antony Anghie, T., Coper, M. & Krever, R.); Death in County Public Defender: 'What I University of Utah: taught the Hands of The State (ed, 1988, with Wish I had Learned in Law School: Hogan, M. & Hogg, R.); Prisoners as 'Imperialism and International Law'. Citizens (ed, 2002, with Wilkie, M.); Defending and Advocating for The New Punitiveness (ed, 2005, with People with Intellectual Antony Anghie is Professor of Law at Pratt, J., Brown, M., Hallsworth, S. & Disabilities'. the S.J.Quinney School of Law, the Morrison, W.). University of Utah. His research interest is the relationship between Mr Edwards is a deputy public imperialism and international law, and Craig Bosch, University of the defender with the Los Angeles County he has written a number of articles on Western Cape, Çapetown, South Public Defender. Currently he serves that subject. He has served as a Senior on the Faculty of the National Fellow at Harvard Law School, and as Africa: 'Employment Consequences Academy for Equal Justice for People a Visiting Professor at the University of of Transferring Businesses'. with Developmental Disabilities at Tokyo. Temple University in Philadelphia. He Craig Bosch is a Senior Lecturer at the also serves on the American Bar Association, Commission on Mental Professor Richard Bonney, Faculty of Law at the University of the Western Cape. Craig's talk was timely and Physical Disability Law and has University of Virginia: 'Capital in New Zealand, considering the published numerous articles on issues Punishment and the Mentally Ill'. contents of the Employment Relations involving people with mental Law Reform bill which had just retardation who are charged with Professor Bonney is the John S. Battle emerged from Committee. Craig crimes. Professor of Law and Director of the presented a comparative view on the Institute of Law, Psychiatry and Public kinds of issues raised by the bill. Associate Professor Colleen Flood, Policy at the University of Virginia. He University of Toronto: 'Litigating is an expert in the fields of criminal Professor Jens Peter Christensen, law and procedure, mental health and Health Care Rights in Canada.' drug law, public health law, and Aarhus Universitet, Department of bioethics. His extraordinary career Public Law and International Law, Colleen Flood is an Auckland alumni who is currently an Associate Professor includes service as a member of the Denmark. National Advisory Council on Drug at the University of Toronto, holding the Canada Research Chair in Health Abuse, Chairman of Virginia's State Professor Christensen visited the Human Rights Committee, as a Law and Policy. From 1997 to 1999 Faculty of Law in December 2004. He she was the Associate Director of the member of the Advisory Board for the was interested in public law principles American Bar Association's Criminal Health Law Institute, Dalhousie Law and governance in New Zealand at School. She is the author of numerous

41 health law articles and book chapters as include a forthcoming article in the Tax Trade and Industry in relation to the well as the author of International Law Review on the taxation of financial reform of British company law. Whilst Health Care Reform: A Legal, instruments. in Auckland, he also gave a seminar to Economic and Political Analysis, the profession for the Research Centre Routledge, London, 2000, and co- Professor Francisco Lopez Jurado, for Business Law entitled, 'Current editor of Canadian Health Law and Developments in UK Corporate Policy (2nd edn), Butterworths, the University of Navarra, Spain. Governance'. Toronto, 2002. Professor Jurado is a Professor of Public Law, Director of the Dr Luke Nottage, Sydney University: Justice Grant Hammond, Court of Administrative Law Department, and a will teach 'International Appeal of New Zealand: taught member of the Academic Council of Commercial Contracts'. 'Appellate Principles and Practice'. the Garrigues Chair in Global Law at the University of Navarra. He is Luke Nottage is Senior Lecturer at the Justice Hammond was educated at the interested in the study of Anglo- Law Faculty at the University of University of Auckland and the American public law and will be in Sydney. He has also taught and University of Illinois. For some years Auckland on sabbatical until January practised law in New Zealand and he was a litigation partner in a New 2006. Japan, and has held research Zealand law firm. He then turned to fellowships in Italy, Canada and academic life. He has taught as a Law Geoff McLay, Victoria University of Germany. Luke is a Special Associate Professor at Illinois, Dalhousie and Wellington: 'Just a Visual Hazard ?- of the Australian Centre for Cornell, and has delivered visiting International Commercial Arbitation. lectures at Stanford, Berkeley, and Gorringe, Lord Hoffmann, Professor His publications focus on contract law, Queen Mary College, University of Harlow and the Public-Private product liability, civil dispute London. He was the Director of the resolution, corporate governance, Institute of Law Research and Reform, Divide and Negligence'. cyber-law, and legal education, mostly and a Professor of Law at the comparing developments in Japan or University of Alberta, before his return Over the last 10 years various transnationally. to Auckland as a Professor of Law, and Commonwealth jurisdictions have been debating the degree to which statutory then Dean of Law. He was appointed to Professor Michael Pendleton, the High Court in 1992. He served on obligations to provide services or to divisional courts of the Court of Appeal protect the public might give rise to Murdoch University: 'US-Australia damages actions on behalf of those prior to his appointment to the Free Trade Agreement and permanent Court of Appeal in 2004. who are either ill served or unprotected by the state agencies that were charged Copyright Law - What Does it Mean with responsibility for looking after for the Technology, Media & Peter Harris, University of citizen's interests. This seminar used Cambridge: will teach 'United the recent decision of House of Lords Telecommunications Sector?' in Gorringe, a roading case, as a point Kingdom Tax Law and Policy'. of departure to discuss how judges Professor Pendleton is a Special conceptualise private law actions Counsel in Deacons' Intellectual Peter Harris is a solicitor and a Senior against public authorities for public Property Group, and a Professor of Lecturer at the Faculty of Law of the services being badly performed or not Law at Murdoch University. He has University of Cambridge, and a Tutor performed at all. In part the seminar authored eight books and over 100 and Fellow of Churchill College. He is was a reply to the concerns raised by articles on international intellectual the author of two books and various Professor Carol Harlow in her New property. He was Chairman of the Law refereed articles. An abridged version Zealand visit last April. Reform Commission of Western of his book Corporate/Shareholder Australia and is a member of the Income Taxation won the International Federal Attorney General's Copyright Fiscal Association's Mitchell B. Carroll Richard Nolan, University of Law Review Committee. He is a prize. That version was also awarded a Cambridge: taught 'Commercial Mediator, Arbitrator and Domain Name Yorke Prize by the Law Faculty of the Equity.' Panelist of the World Intellectual University of Cambridge. Property Organisation, Geneva. Whilst Richard Nolan is a Senior Lecturer at at Auckland he also taught 'Patent Law Professor David Hasen, University the University of Cambridge and a (Infringement and Validity - A Comparative Perspective)' in the LLM of Michigan: taught 'US Corporate Fellow of St John's College. He is also an English barrister in part-time program. Tax: Theory and Policy'. practice at Erskine Chambers, the leading corporate law set in London. Professor Catherine Redgwell, David Hasen is Assistant Professor at He is a contributor to Buckley on the University College London: taught the University of Michigan Law Companies Acts, and one of the four School. His research and teaching editors of the Journal of Corporate 'Advanced Topics in Environmental interests include U.S. federal income Law Studies. He has been a consultant Law'. taxation, tax policy, administrative law, to the Law Commission for England and jurisprudence. His publications and Wales in relation to both trust and Catherine Redgwell is a Professor and corporate law matters. He has also been Vice-Dean of the Faculty of Law, a consultant to the UK Department of

42 University College, London. She has before the courts, including in the the Centre for Business and published widely in leading academic landmark Supreme Court of Canada Professional Law at Liverpool journals, as well as contributing cases of Stillman, Latimer, Gladue and University. chapters to a number of edited Sauve. collections. Monographs include Professor Andrew Simester, Energy Security: Managing Risk in a Karen Scott, University of Dynamic Legal and Regulatory University of Nottingham: taught Environment (co-edited with Barton, Nottingham: 'The Day after 'Fundamental Principles of Criminal B., Ronne, A. and Zillman, D.), Oxford Tomorrow: Ocean CO2 University Press, 2004, and Energy Liability'. Law in Europe: National, EU and Sequestration and the Future of International Law and Institutions (co- Climate Change'. Andrew Simester is Professor of Legal edited with Roggenkamp, M. Ronne, Philosophy at the University of A. and Del Guayo, I.), Oxford A number of offshore carbon Nottingham, and is also a member of University Press, 2001. sequestration techniques are presently the Faculty of Law at the University of being trialed internationally. Ms Scott's Cambridge, where he has taught on the LLM programme since 1994. Andrew's Associate Professor Megan seminar dealt with the legality under the United Nations Convention on the main interests lie in the fields of legal Richardson, University of Law of the Sea (UNCLOS) (1982) of philosophy, criminal law, and private law theory, and he has published in Melbourne: will teach 'International these activities. Karen is a Lecturer at the University of Nottingham. She has these areas in every major common law Commercial Contracts'. a piece by the same title appearing in jurisdiction. He is the author of two the 2005 Georgetown International leading criminal law textbooks, in both Megan Richardson is an Associate Environmental Law Review New Zealand (Principles of Criminal Professor at the Law Faculty, (forthcoming). Law, with Brookbanks, W.) and the University of Melbourne, where she United Kingdom (Criminal Law: teaches and researches in contract law, Theory and Doctrine, with Sullivan, law and economics, entertainment law Professor Len Sealy, University of G.R.), and has edited a number of and intellectual property law. She has Cambridge: taught in 'Corporate books of essays. written widely across these fields in Law'. journals in Australia, Canada, the Professor Tony Smith, University of United Kingdom and New Zealand. Past work experience includes stints at Len Sealy is an Auckland graduate who Cambridge: will teach 'The Media went on to do postgraduate study at the New Zealand, Australian and and Contempt of Court'. Victorian Law Reform Commissions, Cambridge and later took up a teaching post there, along with a Fellowship at and three years in commercial legal Professor Smith teaches and researches practice at Buddle Findlay and Gonville and Caius College. He retired from the S.J. Berwin Chair of at the University of Cambridge (having Chapman Tripp Sheffield Young in previously taught at the University of Wellington. Corporate Law in 1997, but continues to be actively engaged in teaching and Canterbury, and at Durham and writing. Professor Sealy is the author Reading Universities where he was Kent Roach, University of Toronto: and co-author of a number of books in Dean and Chairman of the Faculty respectively). He is author (with Eady, 'Recent Developments in Counter- company law, commercial law and the law of insolvency. He has been a D.) of Arlidge, Eady, and Smith on Terrorism.' consultant in company law reform to Contempt, (2nd edn), 1999, and he has the Law Commissions of England and published books on property offences Kent Roach is a Professor of Law at New Zealand and a number of other and offences against public order as the University of Toronto, with cross- Commonwealth jurisdictions. well as a revised edition of Glanville appointments in criminology and Williams, Learning the Law, 2002. He political science, and a Fellow of the edited (with Simester, A.) the book Royal Society of Canada. His books Professor Avrom Sherr, Institute of Harm and Culpability, 1996. He is a include Constitutional Remedies in Advanced Legal Studies, University practising barrister from London Canada (winner of the 1997 Owen Chambers and an Honorary Bencher of Prize for best law book), Due Process of London: 'Do Lawyers do any the Middle Temple. and Victims' Rights: The New Law and Good?' Politics of Criminal Justice, The Christina Voigt, University of Oslo: Supreme Court on Trial: Judicial Avrom Sherr is the Director of, and Activism or Democratic Dialogue, Woolf Professor of Legal Education at, 'Conflicts and Compatibility September 11: Consequences for the Institute of Advanced Legal Studies between Climate Change Law and Canada (named one of the five most of the University of London. He significant books of 2003 by the studied at the London School of International Trade Law: The Role Literary Review of Canada) and (with Economics, then worked with the city of the Principle of Sustainable Sharpe, R.) Brian Dickson: A Judge's firm of Coward Chance. He taught at Development'. Journey (winner of the 2004 J.W. Warwick University from 1974 Dafoe Prize for best contribution to the onwards and was the Director of the Christina Voigt is a research fellow in understanding of Canada). He has Legal Practice Programme. Prior to his International Environmental Law and a represented aboriginal and civil current position, from 1990 to 1995, he Lecturer at the University of Oslo. liberties groups in many interventions was Professor of Law and Director of

43 She studied law at the Universität Cambridge University in 2002. He was July 2005) he carried out research in Passau in Germany. She has an LLM - a judge of the High Court of New comparative criminal justice (responses Envir from the University of Auckland, Zealand from 1991-1994 and presently to juvenile offending in NZ and Japan) New Zealand, (2002) and has serves, part time, as a judge of the High and gave two guest lectures in the previously worked as a legal Court and Court of Appeal of the Cook undergraduate course on criminology practitioner in Germany. Islands. He has acted as counsel in over on juvenile offending and organized 100 cases before the New Zealand crime in Japan. Justice Wallace: 'The Rule of Law, Court of Appeal and in numerous New Zealand cases heard in the Privy Ming Zhou, Victoria University, Democracy and Morality'. Council, London. He was the New Zealand appointee to the ICC Court of Melbourne: will teach 'International Judge Clifford Wallace is a former International Arbitration from 1999- Commercial Contracts.' Chief Judge of the US Court of 2002 and is presently a member of the Appeals, 9th Circuit (California). London Court of International Ming Zhou is a Lecturer at the Law Arbitration and President of the School, Victoria University, David Williams QC: will teach Arbitrators' & Mediators' Institute of Melbourne. He has also taught at the New Zealand. 'Commercial Arbitration and University of Melbourne Law Faculty. He has published articles on the Vienna Dispute Resolution'. Professor Yoshinaka, Hiroshima Sales Convention and the WTO. University Japan. Previously he was in private practice David Williams QC, an Auckland with Deacons Lawyers, Hong Kong, alumni, is a practising barrister and Professor Yoshinaka lectures in Middletons Lawyers, Melbourne and arbitrator. He was a Visiting Scholar at criminal law and criminology at Camerons Lawyers, Shepparton. the University of Virginia Law School Hiroshima University in Japan. During in 1978 and a Visiting Fellow at his stay in Auckland (October 2004-

Edward Scorgie, LLB(hons) 2000, singing opera at a recent LRF Annual General Meeting. Photo: Scott Optican

44 Jim Evans retires. Photo: Scott Optican Eden Crescent, Faculty of Law The University of Auckland Private Bag 92019, Auckland, New Zealand [email protected], www.law.auckland.ac.nz