James Farmer

Legal Commentary

David Barnes (27 April 1958 - 23 October 2020) - A Personal Note

Last Friday (30 October 2020) was a sad day for those attending the funeral at St Joseph’s Church Takapuna of David Barnes but also a massive tribute to him from the yacht racing community.  The occasion, which was attended by everyone who was anyone in New Zealand yacht racing, provided a reminder of the prominent part that Dave played among New Zealand sailors of the past who led the way to New Zealand becoming a powerful participant in International yacht racing.   More...

Cannabis Bill Not the Right Reform

I have previously written about the Cannabis Bill referendum on my Blog on two occasions.  This is the third.   My justification is that the referendum is close and recent public debate has clarified the issues.  The report by the “panel of experts” chaired by the Prime Minister’s Chief Science Adviser and the further report by the New Zealand Drug Foundation also raise concerns as to whether the public is receiving full, accurate and sufficient disclosure of the potential harm that cannabis causes to health, particularly the young.  The distinction between legalization and decriminalization is also not fully appreciated.  Hence this further (and final) posting, which was the subject of a presentation to the Auckland Rotary Club on 5 October. More...

Whatever the result, is this the last time the America's Cup event is held in New Zealand?

New Zealanders have had a love-hate relationship with the America’s Cup and in particular with Team New Zealand since at least the time when the Cup was lost to Alinghi in 2003.  Always regarded – and in fact – “a rich man’s sport” and as such not easily fitting the New Zealand psyche where Jack is as good as his master, the efforts of Peter Blake, Russell Coutts, Brad Butterworth and Tom Schnakenberg in wresting the Cup from the United States and Dennis Connor in 1995 gave us a pride of achievement, a sort of David and Goliath feeling. More...

Cannabis Legal Reform - Arguments For and Against

I have consistently believed that cannabis is a harmful substance and that people who use it for “recreational purposes” would be more sensible to choose a healthy form of recreation that doesn’t put them and those dependent on them, i.e. their children and future children, at risk of harm. More...

Will the Proposed Cannabis Legislation Achieve its "Overarching Objective" of Reducing the Harms Associated with Cannabis Use?

What does the proposed Cannabis Legalisation and Control Bill (to be voted for or against in the Referendum) provide?  More...

The Debate Continues - Virtual Hearings or Real Hearings


With his permission, I have provided a link above to the website that Dr David Harvey, former District Court Judge, operates. This is mandatory reading, though I remain convinced that we should not compromise the essential elements of the in-court, oral, adversarial hearing. David’s contrary position, put in delightful language, is:

“Although the panoply of justice and the ‘majesty of the law’ aspect of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services.”

That forces me to confess that I personally opposed the abolition of the wearing of wigs and bans in court. Why? To me, they did indeed symbolise the majesty of the law or, to put it more prosaically, they served as a reminder to everyone present - litigants, witnesses and counsel – that this was a serious forum and occasion where truth, honesty and fairness were on trial.

Jim Farmer

1 May 2020 More...

These Issues were all Predicted Pre-Covid-19 and 6 Years Ago


This is a paper written and presented 6 years ago by Gillian Coumbe QC at the World Bar Conference in 2014 on the advent, and dangers, of technology being used to create virtual hearings in our courts, in the cause of efficiency. I would urge everyone to read and consider every word of it when thinking of how the courts should be dealing with the problems of Covid-19 today and to weigh those problems against the damage that the proposed solution of remote hearings of substantive matters will cause.

Jim Farmer

2 May 2020 More...

More Correspondence on Covid-19 and the Courts

Thanks, Jim.  Good to have the contrasting views.  I am, however, with you on the need for and importance of in person hearings.  Sure, we can all "manage" otherwise to some degree if needed.  But, it's far from ideal (and I’m sceptical about some of the efficiency claims too).  My friends in the UK who have done Skype hearings in the Commercial Courts are all bemoaning those.  Consistent view seems to be that they take far longer/are much more tiring for all and advocacy gets lost.  I don't think arbitration is the silver bullet either.    More...

In Defence of Remote Technology - from Steve Keall

Dear Jim,

I was pleased to read this interesting and well thought out opinion piece.

In this spirit of healthy debate, I will chime in, so that you may continue to develop your thinking about this important topic.

I do not think there would be much disagreement in the way you have described the key societal/ juridical values for hearings. The crux of it is whether technology can serve those values. In my opinion, this is a functional/ technical issue. It is not a binary question of whether the technology is good enough or not. That is unfair, because “in-person” hearings have their share of imperfections. The question is whether, broadly speaking, technology is sufficient; which is to say it works well enough most of the time. I suggest it can be dealt with in these approximations rather than with exactitude. I suggest this is the test.

This issue is receiving a lot of attention presently in the common law world. There are examples of technology satisfying the test as I have described it. I draw to your attention the recent trial in the England/ Wales Commercial Court; Kazakhstan v The Bank of New York Mellon, which, I understand, took place between 26 March and 1 April. It was fully “virtual.” “Virtual” is perhaps an unfortunate term, it evokes science fiction, reminding members of the bench of scary childhood reading many decades ago. A more straight forward way of describing it would be to say that all of the trial steps took place outside of the Courtroom using audio-visual technology only. In this case, all participants (judge, counsel and witnesses (factual and expert) participated by audio-visual link within England, and also from Belgium, Kazakhstan and the United States. You will be able to read commentary about the case online. It seems to me that it was generally regarded as a success. It is proof of concept.

 You mention technical glitches you have encountered. May I suggest you do not need to be troubled by these; “glitches” are a fact of life; when we are together in person or not. As one of our country’s most experience litigators, you are more familiar than anyone with the idea that trials are organic and fluid. Adaptation is not just something that happens sometimes. It is continuous state; a permanent frame of mind. So, when the signal is lost, one may wait patiently for it to resume. When a pet walks into the shot, it can be quietly shoo-ed out of the room or for more serious transgressions, put down (but not on camera). Often technical glitches in an audio-visual setting are temporary; caused by a momentary interference by the weather for example.

In-person hearing have their own hazards. I remind myself of a trial a colleague was involved in a couple of years ago. Junior dropped the water jug. It splintered and she cut her hand badly; with great drama is spurted blood all over the bar table. The judge paled, and swiftly exited stage-left to leave time for counsel and the crockery to be reassembled. Which they were. The trial proceeded, it made for a good story, all was well, Justice was done.

Also, I remind you that AVL has been a staple of Court practice for some time; for people on remand or serving a sentence of imprisonment, for anything except trial. They lost their right to attend Court some time ago; AVL was accepted as expedient.

Thank you again for your interesting and thought provoking piece.

All the best

Steve Keall More...

Recent Posts

  1. David Barnes (27 April 1958 - 23 October 2020) - A Personal Note Chris Goode 03-Nov-2020
  2. Cannabis Bill Not the Right Reform Chris Goode 07-Oct-2020
  3. Whatever the result, is this the last time the America's Cup event is held in New Zealand? Chris Goode 14-Sep-2020
  4. Cannabis Legal Reform - Arguments For and Against Chris Goode 13-Aug-2020
  5. Will the Proposed Cannabis Legislation Achieve its "Overarching Objective" of Reducing the Harms Associated with Cannabis Use? Chris Goode 18-May-2020
  6. The Debate Continues - Virtual Hearings or Real Hearings Chris Goode 02-May-2020
  7. These Issues were all Predicted Pre-Covid-19 and 6 Years Ago Chris Goode 02-May-2020
  8. More Correspondence on Covid-19 and the Courts Chris Goode 30-Apr-2020
  9. And here is a Report from Stuff of a Virtual Hearing this Week Chris Goode 30-Apr-2020
  10. In Defence of Remote Technology - from Steve Keall Chris Goode 29-Apr-2020
  11. Court Hearings and Covid-19 - Part Two Chris Goode 29-Apr-2020
  12. Court Hearings and Covid-19 Chris Goode 28-Apr-2020
  13. Covid-19 and Executory Contracts: Will the Doctrine of Frustration Apply? Chris Goode 06-Apr-2020
  14. Race, Poverty and Education - Lessons from the UK learned while spending Christmas in London December 2019 Chris Goode 13-Jan-2020
  15. Witnesses in Civil Cases - the Consequences of Not Calling and of Not Cross-Examining - A Paper Presented to the Pacific Islands Lawyers Association, Auckland, 22 November 2019 Chris Goode 22-Nov-2019
  16. The Forthcoming Referendum on the Growing and Supply of Cannabis for Personal Recreational Use Chris Goode 19-Nov-2018
  17. Armistice Day and Its Sequel Chris Goode 14-Nov-2018
  18. An Easy Read of the Rule of Law in the World of Fiction Chris Goode 08-Aug-2018
  19. Bullying, Harassment and Gender Bias Chris Goode 22-May-2018
  20. Criticising Judges Chris Goode 07-May-2018
  21. America's Cup Part 3A Chris Goode 11-Dec-2017
  22. America's Cup Part 3 Chris Goode 04-Dec-2017
  23. Pro Bono Publico as an Aid to Living a Balanced Lifestyle Chris Goode 08-Nov-2017
  24. Terence Arnold Retires From the Supreme Court Bench Chris Goode 10-Apr-2017
  25. From Violence to Redemption Chris Goode 15-Mar-2017
  26. Drugs, Sports and Society Chris Goode 18-Oct-2016
  27. Are Our Law Schools Churning Out Too Many Lawyers? Chris Goode 25-Aug-2016
  28. Equiticorp 20 Years On Chris Goode 07-Jun-2016
  29. The Year in Retrospect Chris Goode 19-Jan-2016
  30. A Good Year for the Farmer Legal Family Chris Goode 30-Oct-2015
  31. Having a Balanced Life Style - Part 4 Chris Goode 21-Sep-2015
  32. A Balanced Life Style (Part 3), Prisoners' Voting Rights, Top Gun, 7000kms in a Corvette, John Maynard Keynes and Atticus Finch Chris Goode 05-Aug-2015
  33. Biographies Chris Goode 13-Apr-2015
  34. The Cost of Justice Chris Goode 13-Mar-2015
  35. The Increase in Unrepresented Litigants and Their Effect on the Judicial Process Chris Goode 11-Feb-2015
  36. Evidence - Notes of Presentation to Continuing Legal Education Seminar November 2014 Chris Goode 01-Dec-2014
  37. Corporate Governance and Directors' Liability Chris Goode 19-Aug-2014
  38. Paper Presented on 2 August 2014 at the Competition Law & Policy Institute of New Zealand 25th Annual Conference Chris Goode 05-Aug-2014
  39. Life in the Fast Lane Chris Goode 06-Jun-2014
  40. 2014 - Roaring Past Chris Goode 04-Jun-2014
  41. Commentary on Paper Delivered by Professor Andrew I Gavil at Commerce Commission Conference Chris Goode 19-Nov-2013
  42. America's Cup Wrap Up Chris Goode 04-Oct-2013
  43. Happiness, Living a Balanced Life and Legal Practice - Part II Chris Goode 15-Aug-2013
  44. America's Cup 2013 Chris Goode 01-Jul-2013
  45. Why the Rules of Evidence Matter in Civil Cases Chris Goode 12-Mar-2013
  46. The High Court in Review Chris Goode 08-Oct-2012
  47. "Criticism of Supreme Court needs to be put in context" as published in the New Zealand Herald 11 May 2012 Chris Goode 23-May-2012
  48. Recent Reform Reports Chris Goode 03-Apr-2012
  49. Happiness, Living a Balanced Life and Legal Practice Chris Goode 09-Jan-2012
  50. In Defence of the Supreme Court Chris Goode 12-Dec-2011
  51. Cross Examination Notes Chris Goode 11-Nov-2011
  52. The passing of three leaders of the Bar Chris Goode 14-Sep-2011
  53. Commentary on my commentary on Morse Chris Goode 14-Sep-2011
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