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A senior Auckland barrister’s first-hand experience of appearing in the Supreme Court as a rookie

30 Jun 2023

| Author: Andrew Steele

Our LawNews editor asked me to write about the experience of my first-ever appearance in the Supreme Court in the case of A, B and C v D & E Limited as trustees of the Z Trust SC 106/2022 – the so-called “Alphabet” case.

I’m not going to argue the merits of this case. The Supreme Court will inform us what the law is in due course. Instead, this piece is intended to enlighten readers about my experience, as a barrister with 30+ years of lawyering under my belt, appearing in the Supreme Court as a newbie.

Initially, it was somewhat daunting. The screen clothing the outside of the building immediately distinguishes it from surrounding buildings that are drab by comparison. When you walk in the main entrance, you know the occasion is momentous. Large copper panels encase the courtroom (which apparently takes its inspiration from the seed cone of a kauri tree), giving the room a uniquely Kiwi flavour. I have been to the High Court of Australia in Canberra, the Old Bailey in Newgate and the Royal Courts of Justice in the Strand in London, and these courts give a totally different and more traditional “ye olde” or stately feel.

The overall impression is that this is a special and unique place and you had better lift your game to meet the gravity and importance of the occasion. Even though the subject matter of the case involved appalling facts, counsel were friendly and collegial, reflecting I think that the matter was at the end of the judicial road. The issues had been distilled to the point where the initial battle had evolved into a legal debate between colleagues.

 

Knowing your case

When the hearing got underway, it was immediately apparent that the judges were thoroughly prepared. They had digested the submissions and case authorities and were ready to begin the inquiry. I use the word ‘inquiry’ intentionally because the judges seemed less interested in receiving submissions per se than in getting to the nub of the key issues – and getting there quickly. Apparently, when Mike Tyson was asked by a reporter whether he was worried about Evander Holyfield and his fight plan he answered, “No, everyone has a plan until they get punched in the mouth.”

That brutish insight would seem to have little relevance to appearing in the Supreme Court – but it does. I got half-way through my oral submission “road map” when the questions started coming from the bench and, like the Wellington rain, they came from all angles and thick and fast. My carefully choreographed submissions become a distant memory as my theory of the case was given the third degree by five of our country’s best legal minds. My advice to the Supreme Court newbie is this: know all aspects of your case, including the jurisprudential underpinnings of your arguments, thoroughly. Test your theories with your colleagues and value the conflicting opinions that challenge your arguments. Think also about the wider societal implications of the principles you seek to persuade the court to accept.

If you don’t prepare in this way, then you may not be as ready as you would wish to be when the judges’ questions come flying at you. Their probing is fair and purposeful, but that does not make it any easier. While there are no traps or hidden agendas, the questions will nevertheless test your theories and probe for possible unexpected consequences arising from your arguments. If you have not taken the time in your preparation to think deeply about the wider issues, then you could run the risk of offering shallow or, worse still, incoherent arguments in support of your case. I hasten to add that in our case, no party or counsel fell down that hole. It was clear to me that the court is acutely conscious of its role in setting the law for perhaps many years to come and it genuinely seeks assistance from counsel to better serve that purpose.

So, in the lower courts one might focus more on the battle between the parties but once you are in the Supreme Court there appeared to be a shift away from a battle mentality to a focus on the orderly development of the law. Reverting to less lofty observations, I was surprised by the humour and openly exhibited humanity of the judges. Given the power of the court, one might expect the judges to exhibit a starchy correctness or even sternness but instead one encounters friendliness, patience and courtesy.

 

The appeal

The case itself involves the worst kind of background. The appellants were children (two sons and a daughter) who suffered what the High Court held to be egregious verbal and physical abuse (and in the daughter’s case, sexual abuse) from their father when they were young and under his care.

After the father left the family home, he became estranged from the children right up until his death more than 30 years later. During the estrangement, the father knew his children needed financial and emotional support but gave none. Some 16 months before he died, the father gifted the bulk of his property into a trust, in part to thwart any possible claim against his estate by his children. The issue before the Supreme Court was whether the law of fiduciaries could be applied so as to unwind the father’s gifting in some way so the children’s Family Protection Act claim would have property in the estate from which relief could be given.

I believe I am on safe ground in suggesting that the law of fiduciaries needed various adjustments or extensions before it could be applied to give the relief sought by the children. The contest between the parties revolved around whether those adjustments or extensions were appropriate as a matter of principle or whether there may have been other ways the law might respond to the children’s claim for relief.

 

After-thought

Some may view this article as obsequious, I say I’m calling it as I saw it. In my 30+ years of appearing in courts and tribunals here in New Zealand and in England, I’ve encountered my share of judicial curmudgeons. I flatter myself that I can, with objectivity, differentiate the good experiences from the bad.

As a final overall impression, I came away satisfied that the parties were thoroughly heard and understood. As advocates, can you ask for more than that? A shout-out to my opponents, Lady Deborah Chambers KC, Issac Hikaka, Josie Beverwijk, Mike Phillips and Vicki Ammundsen. This first-class team didn’t just present an excellent appeal, they did it pro bono, illustrating the characters of each one of them. ■

 

Andrew Steele is an Auckland barrister, specialising in trusts and estates ■

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