What Was That Thing You Said? the NZ Supreme Court's Vexing Vector Gas Decision
Palmer, Jessica, Geddis, Andrew, University of Queensland Law Journal
I WHAT IS IT WE ARE LOOKING FOR?
our task in this themed issue is to identify the worst decision handed down by New Zealand's top court in the last quarter-century (and, presumably, defend our choice through some form of reasoned analysis). To accomplish this undertaking, we must resolve a number of preliminary matters. First of all, we need to specify the object of our inquiry. An immediate complicating factor is that before 1 January, 2004, the Judicial Committee of the Privy Council sat at the apex of New Zealand's judicial pyramid. Following that date, a newly formed domestic Supreme Court took up the role. (1) Consequently, we must choose whether to include in our pool of potential contenders those decisions made at 9 Downing Street, or limit it to the output of the still quite young domestic institution. Including the Privy Council's contribution to New Zealand jurisprudence would have the benefit of permitting cases such as Buchanan v Jennings (2) or Bottrill v A (3) to have a chance of grabbing the dubious honour at stake. However, insofar as choosing a 'worst decision' involves an element of criticism and condemnation of judicial practice, we would prefer to level this at judges deliberately appointed to oversee New Zealand's case law and responsible for that task alone. (4) In short, castigating a judicial body sitting some 18,000 kilometres distant for doing a bad job when deciding what New Zealand's law ought to be--a job its members undertook alongside a range of others, and no longer have to perform--seems a bit beside the point. So for that reason, we have decided to confine the range of potential 'worst decisions' to the 167 final judgments with reasons handed down by the New Zealand Supreme Court as of the end of 2011.
Having thus identified the eligible contenders, the next matter to decide is how to decide which of these is the 'worst'. Deciding how to decide this question involves formulating a set of evaluative criteria that can distinguish between 'good' and 'bad' examples of judicial practice. In some fields of human endeavour, ranking an outcome or achievement relative to others is relatively straightforward. So, for example, it is possible to say definitively that the All Blacks are better at rugby than the Wallabies as they have emerged victorious on 99 of the 146 occasions that the two teams have met on the field. (5) Similarly, we can say that the Tampa Bay Buccaneers of 1976-77 are the worst ever team to play in the National Football League, due to the 0-26 record they amassed over that period. Or, we can say that Usain Bolt is the best sprinter in modern history as the only man to hold both the 100 and 200 meter world records at the same time. (As to whether he is the 'greatest athlete to live', as he proclaimed himself to be, (6) is then a further question that can only be resolved by extensive alcohol-fuelled barroom debate.) Such statements confidently can be made because sports have an inbuilt means of determining a clear hierarchy of achievement: the very purpose of the enterprise is to produce an outcome where, according to their performance on the day under the particular rules of the game, one competitor or team is shown to be the best. (7) However, when we turn to assess the relative merits of court decisions, this evaluative process is not as straightforward. There is no preordained method of direct comparison inherent in the very practice of judicial decision-making that allows us to say that the judgment in A v B outperformed that in C v D, much less to anoint the court's decision in Y v Z as obviously the poorest example of the lot. (8) So if the act of rendering judgment does not permit us to measure a court's case-versus-case performance as we would a football team's or marathon runner's, we must develop and impose a means of evaluation that will permit us to achieve our goal.
At this point we could try and cheat a bit by adopting a shortcut method of establishing such a ranking through pointing to some general consensus amongst those involved in legal education or practice. …