New Zealand (1)

I was lucky enough to spend six weeks at Stout Street Chambers in Wellington, New Zealand. Stout Street barristers practise across public and commercial law.

In my first week, I was struck by the differences between practising at the Bar of England and Wales versus practice in New Zealand. For instance:

• No clerks! Every barrister at Stout Street largely generates their own instructions and manages their own diary. Many senior barristers were formerly partners at law firms. The juniors are hard-working and brilliant and generate their own work.
• Generalists: a commercial barrister is very happy to speak about the Resources Management Act 1991, or the Principles of the Treaty of Waitangi Bill or the NZ Bill of Rights Act. There’s less of a culture of specialisation and a greater focus on multiple areas of practice. This suits a group litigation practice, where no practice area is off limits.
• Litigation temperature: Even during high-stakes, challenging litigation, there seems to be a strong sense of reasonableness in conducting the litigation, possibly down to New Zealand’s smaller legal community, often with few degrees of separation.
• Plaintiff rather than Claimant: a small point but I’m proud of England and Wales for being modern and using plain(er) English here.
• Judicial Review: no permission is required and there is no three-month deadline to file. This is perhaps explained by the much higher High Court judges per capita in New Zealand. England and Wales’ King’s Bench Division, which hears judicial reviews, has 71 full-time judges (for a population of 68 million), against New Zealand’s 46 (for a population of five million).
  Legal personality: Mount Taranaki has legal personality, alongside Te Urewera and Whanganui River.
• More than 300,000 submissions had been received on the Principles of the Treaty of Waitangi Bill, which, according to the Bill’s promoter, seeks to “set out the principles of the Treaty of Waitangi in legislation”.

In my second and third weeks as a Pegasus Scholar in New Zealand, I attended a Court of Appeal hearing concerning the mandatory wearing of face masks from 2021 on public transport, essential retail businesses, certain public facilities and, later, only in certain health service premises. The main challenge was on the basis of a mistake of fact (ie did the Minister make the Orders on the mistaken basis that face masks are effective at stopping the spread of COVID-19?), which principle comes from an English and Welsh Court of Appeal case E v SSHD [2004] 2 WLR 1351. It was encouraging to see all (even more junior) members of the legal teams provide submissions to the Court.

I also observed High Court civil advocacy dispassionately, and noted some phrases I would like to steal for my own practice:

• Where I’d like to start the story is…
• [Read out letter] What they’re saying is: [translate to plain English]
• I may sound like a broken record and I’m sorry for that, Judge, but [reinforce key point]
• The best answer I can give you to that is…[cite your client’s evidence]

I enjoyed reading New Zealand’s excellent advocacy books, one edited by the former Chief Justice of New Zealand, Sir Thomas Eichelbaum. The chapter on cross-examination was particularly good.

I was further encouraged by brilliant lawyers to read more legal theory: Sian Elias, Cardozo, Bingham, Brandeis, Holmes, Winkelmann, Glazebrook. That way, it is possible to better understand what the common law is doing and how.

I then enjoyed reading my colleague Monique van Alphen Fyfe’s brilliant 2013 article on challenges facing women in law, which highlighted (pithily) how 60 per cent of graduating law students in New Zealand were women, but only 27.7 per cent of judges and 19 per cent of partners in law firms were women. She called the movement toward equality at senior levels in law “abnormally slow” and proposed mechanisms for change.

I also enjoyed working on equitable estoppel (purportedly a unified estoppel in New Zealand), tort law in Samoa, investigations and fast-track planning procedures under COVID-19-era legislation.

In my last couple of weeks as a Pegasus Scholar in New Zealand, I learned about NZ’s climate change litigation (and their interesting and novel approaches to it). My key takeaways were:

• Lawyers for Climate Action NZ (https://lnkd.in/ePaNwduB) – a phenomenal group of lawyers and academics using the law to drive more effective action on the climate crisis.
• Smith v Fonterra [2024] NZSC 5 – the Supreme Court refused to strike out Mr Smith’s claim that eight polluting companies were causing a public nuisance, actionable in tort law (amongst other torts).
• Lawyers for Climate Action NZ v Climate Change Commission & Minister for Climate Change [2022] NZHC 3064 – judicial review proceedings against the Climate Change Commission alleging its advice to the Minister was not ambitious enough to contribute to limiting global warming to 1.5°C over the course of the decade. This was based on an alleged mathematical or logical error in recommending emissions reduction targets by reference to NZ’s gross 2010 emissions rather than net. The application was dismissed, but is being appealed to the Court of Appeal.

Overall, I had a fantastic time learning about legal life in New Zealand. I gained important insights into novel legal strategies on topics such as climate change litigation, and I improved my advocacy skills by observing some powerful advocates in the High Court and appellate courts. I also made fantastic friends and am glad we are staying in touch via lunches in Lincoln’s Inn in London when my colleagues visit this way.

Anna Dannreuther
Old Square