Reviewing the Judgment under appeal
It is natural to assume that a Judge who has rejected your arguments or evidence was simply – and totally - wrong. The best Judges are of course those who have found in your favour! However, even if the result is properly subject to appeal, that does not mean that every factual finding and every piece of the legal analysis is wrong. Try to be objective. Getting a second opinion from someone who was not involved previously can often pay dividends,
When formulating grounds of appeal, discard weak points and endeavour to restrict the grounds to a small number, consisting of the best points available. This may require firmness with a client who wants to argue everything and also in a case where your view is that there are no grounds of appeal (including returning the brief).
Nature of an appeal
The appeal is a rehearing but there is a tension between an appellate court’s desire to ensure that the right result is reached and the deference that is traditionally paid to the trial Judge. This is particularly acute in the case of appeals against findings of fact. See the Judgment of Kirby J in State Rail Authority (NSW) v. Earthline Constructions (1999) 160 ALR 588 at -. In that Judgment, His Honour traced the changes in judicial attitudes to setting aside findings of fact from one of fairly strong deference to the trial Judge to a more expansive view that in general (and allowing for “respect and weight” to be given to the findings of the trial Judge) an appellate court “is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. A similar approach was taken subsequently by Elias CJ in Austin Nichols v. Stichting Lodestar  2 NZLR 141 (SC) at . Both Kirby J and Elias CJ emphasized the “rehearing” nature of an appeal. Their approach, as Kirby J pointed out, contrasts with the narrower view – espoused in Australia by Barwick CJ when he was Chief Justice of the High Court of Australia – that the appellate court would not interfere with findings of fact by the trial judge if they were “reasonably open on the evidence”, an approach which was also prevalent in New Zealand before Austin Nichols.
Documentary evidence and where a key potential witness is not called are common examples of where an appellate court may readily draw its own inferences, even if they differ from those drawn by the trial Judge. An example is Coleman v. Myers  2 NZLR 225 (CA), where the defendants to a claim for breach of fiduciary position chose not to give evidence explaining the documentary evidence of the relevant transactions. The trial Judge concluded that the documents recorded transactions that were entirely proper but the Court of Appeal, taking some account of the fact that the defendants had not given evidence, drew different inferences and made findings of breach of fiduciary duty.
Appellate Judges sometimes – intending no doubt to be helpful – suggest a new point or argument or angle that up to that point no counsel or the previous Judge or Judges have thought to raise. Be cautious about accepting such offerings. Acceptance with gratitude instantly may lead to grief on further analysis or may simply demonstrate that the initial offering was one made off the cuff and was not the product of careful analysis.
There are in any event limits on raising new points or arguments on appeal but an appellate court may give leave to do so. That occurred in the Privy Council in Foodstuffs v. Commerce Commission  1 NZLR 145 (PC) at . On the other hand, arguments and analyses presented in the Court below will usually – quite properly – be refined on appeal as the result of that Court’s Judgment and further thought.
The Written Submissions
Filing and serving written submissions in advance of an appellate hearing is mandatory and is undoubtedly useful as providing advance notice (beyond the grounds of appeal previously set out in the Notice of Appeal) of the arguments that will be relied on by both sides. That serves to reduce, if not eliminate, the element of surprise and also to provide the foundation for the presentation of oral argument at the hearing. There are now limits imposed on the number of pages that such submissions may occupy (25 in the Court of Appeal for example, unless leave to go further is obtained). This requires a degree of succinctness and is a useful discipline to confining the argument to what is essential.
The structure of written submissions is important and careful thought should be given to it. Raynor Asher at the ADLS seminar expressed the view that including a summary of the arguments that would be presented at the very beginning of the submissions, as part of the Introduction, was very useful to a Judge in obtaining from the outset the full picture before the Judge read into the detail of the submissions.
Presenting the written submission orally
It is trite to say but important to observe that counsel should not read the written submissions. Given that the written submissions will have been read, an effort should be made to formulate a different (and interesting) structure, omitting background and narrative material that may have been in the written submissions, and treat the oral presentation as advocacy – which it is.
Counsels’ Notes or Road Maps are a useful aid to oral presentation but they should not be cast as supplementary written submissions. They are notes (a maximum in most cases of 2 or 3 pages) intended to outline how counsel intends to present the oral argument (hence “Counsels’ Notes, a term coined by the late Richard Craddock QC and copied by me) and should contain references where relevant to the written submissions that have previously been filed and served (the “Road Map”, a term coined by David Goddard QC, now a Court of Appeal Judge). The form that my version of Counsels’ Notes takes is (i) headings of topics or issues (ii) bullet points, accompanied by references to evidence or Judgment of the court below or of precedent relied on and which the court will be taken to.
If appearing for an appellant, my practice is to weave into my affirmative case, comment on the respondent’s case as it appears from the written submissions. This is an advantage that the appellant has over the respondent, not only by virtue of presenting his or her arguments first but also having the opportunity to “poison the well” in referring to the weaknesses of the respondent’s forthcoming arguments.
Keep in mind that, in assessing factual and legal arguments, Judges, consciously or otherwise, are inevitably influenced by the “merits” of the case. As Lord Denning MR famously said: “As a Judge, I put Justice first”. This requires either exploitation of or countering the merits, as the case may be.
References to evidence and judicial precedents
A number of preliminary points and assumptions should be made as to the extent to which at the hearing the Court should be taken to the Record of the evidence in the High Court (oral and documentary) or to case law in the Bundle of Authorities.
First, it should be assumed that the Judges have read the written submissions reasonably thoroughly in advance of the hearing and, while retaining an open mind on the outcome, will individually at least have formed a tentative view on the merits of the appeal. During the course of presentation of oral argument, it is to be hoped that any such views will become apparent from questions from the Judges or, more explicitly, challenges to the argument that is being presented. This should not be taken negatively. To the contrary, it provides an opportunity to engage with the Judge who is questioning the soundness of your argument and to seek to persuade him or her that his or her tentative view or doubt is misplaced. Nothing in fact is worse than a Judge who sits mute throughout the whole of the argument and who then brings downs an adverse Judgment. Fortunately, it has been a feature of our Court of Appeal and Supreme Court for some considerable time that the Judges participate actively – some might think too actively! – in the hearing.
Secondly, it should be assumed that one of the Judges will have spent some time looking at the High Court evidential record. Whether so or not, it is believed that one Judge will have been selected for this task and that that Judge may be tentatively assigned to write the Judgment or the primary Judgment for the Court.
It should certainly be assumed that all the Judges will have a very good knowledge of the relevant general legal principles and in the appellate courts will be aware of virtually all of the earlier relevant Judgments of those courts though not necessarily with the detail of those Judgments. That assumption may not extend to their all having a close knowledge of the relevant statutory provisions or of any area of specialised law. New Zealand has not divided the High Court into specialised Divisions (for example, commercial law, construction law, administrative law, taxation, trusts) and, Judges of the High Court, Court of Appeal and Supreme Court are, by their experience as Judges, generalists. The allocation of Judges for hearing particular cases reflects that.
What this means (acknowledging the assumptions referred to above) is that you should nevertheless not be slow to take the Court to the important evidence in the record and to the important Judgments and statutory provisions upon which you are relying and read the relevant extracts or provisions (adding comment or emphasis where appropriate).
When doing so, begin by establishing the context before reading the passages in the evidence or in the precedent Judgment or in the Statute that you are relying on. In the case of passages from precedent Judgments, begin with a short summary of the nature and facts of the case (and never refer to a case that you have not read or do not know the facts of). Robin Cooke would often test counsel who simply read a passage from the Judgment of a case by enquiring as to the facts of the case and, if counsel were unable to respond, would give little credence to counsel’s submission at that point. Relatedly, counsel must be absolutely scrupulous about ensuring that any passages (in evidence or in a Judgment or in a statute) that are read to the Court are not taken out of context or not qualified elsewhere (without drawing attention to the qualification).
Similar care must be taken to challenging the evidence of a witness at the trial and particularly the credibility of the witness. If contrary evidence was not put to the witness in cross-examination or his or her credibility not raised and the witness given an opportunity to respond, the challenge may not be available. That requirement (initially known as the rule in Brown v. Dunn) is of course now enshrined in section 92 of the Evidence Act.
Conduct of the Judges at the hearing
Generally, counsel are often thrown off their stride by a question that is off the point that is being made at the time. It is important not to allow Judicial interventions of that kind to disturb too much the structure of the argument. If the question can be answered shortly, do so but if it is going to open up a whole new area of the case that you intend to deal with later, do not hesitate to say that you will be dealing with that later (but make sure that you do!)
Be alert to the fact that some points made to counsel by a Judge may not really be intended for counsel but are in reality that Judge conveying his or her view to the other Judges. This was said to me socially when I was in London for a Privy Council hearing by Lord Templemann and he was a strong exponent of that practice – in substance, a form of advocacy by him as a Judge to the other Judges during the hearing itself as to what the outcome should be. It is not unknown in our appellate courts for a question by one Judge to counsel (reflecting a view either favourable or unfavourable to counsel’s argument) to be followed immediately by a question to counsel from another Judge, reflecting the opposite view.
Judges are human and therefore are able to exhibit irritation, impatience and, in rare cases, even use their superior position to beat up on counsel. If that is the result of poor preparation or confusing presentation, then counsel probably has it coming but Judges should, and normally do, recognize that counsel often have to do their best to make a silk purse out of a sow’s ear.
Judicial rudeness to counsel (fortunately, relatively rare) requires restraint by counsel – do not respond in kind! Retain dignity and (to use a much-abused rugby term) composure. Our system is dependent on mutual respect and courtesy. If a Judge breaches that code, there is no justification for counsel to do the same.
Judicial humour should be treated with respect and admiration, even if not really funny. Counsel can respond with a humorous retort (so long as the Judge is not up-staged). The initiation of humour by counsel is reserved to counsel who are older than the Judges.
Court of Appeal and Supreme Court
There is likely to be a difference in how a case should be presented to the Court of Appeal and how it should be presented to the Supreme Court. The Court of Appeal is a very busy court with a large work load and the Judges will typically be looking for the issue that will determine the outcome of the case and stay with that. They will not be receptive to collateral or alternative or back-up arguments. The Supreme Court sees itself as having a rather different role, correcting error but more particularly seeking to develop the law. This requires attention to policy considerations that are relevant to what the law “ought to be”. That court is also more likely to be interested in how the law has developed in other jurisdictions so that research not only of English and Australian precedents but also of Canadian and American case law may be required.
8 March 2021
Jim Farmer QC