2

A defendant in a civil proceeding chooses to play no active part and says they will abide the court's decision.

However, they add that because "the Court is left with no active contradictor in the proceedings ... the Court may wish to direct the Solicitor-General to appoint counsel to appear and be heard as counsel assisting the Court in this proceeding". NZ courts indeed can do this under rule 10.22, which the defendant explicitly refers to:

10.22 Counsel assisting

At the request of the court, the Solicitor-General must appoint counsel to appear and be heard as counsel assisting the court.

What would be the defendant's motivation for such a suggestion? What would they want to achieve by having the court appoint an amicus curiae?

2

An amicus curiae, in my experience, is appointed to consider the law, not the facts. Just because the defendant does not wish (or cannot afford) to contest this case does not mean the law is clearly on the plaintiff's side; and if it is not, you might get the result where the plaintiff's counsel sees a difficulty, but feels his responsibility to his client does not enable him to explore the point: and the judge also sees the potential problem, but cannot take account of it if it has not been argued before him. So the Court would be constrained to find for the plaintiff, and possibly set a precedent, when everyone in court knows it should not. [I am well aware that this is oversimplified; it's just an explanation of theory]. So the court (or in NZ the Solicitor-General) appoints counsel to argue whatever points can properly be argued. This is done for the benefit of justice as a whole; but since it may also lead to an undisputed claim being dismissed, it also benefits the defendant.

  • 1
    Can you please elaborate/clarify on 1) "the judge also sees the potential problem, but cannot take account of it if it has not been argued before him" — why can't the judge take account of it on their own motion? 2) "it may also lead to an undisputed claim being dismissed" — do you mean that the amicus curiae could essentially happen to play for the defendant's benefit to the effect that the claim is dismissed? – Greendrake Feb 9 at 11:49
  • @Greendrake Courts generally cannot consider arguments that aren't raised by a party in the case. – phoog Feb 9 at 18:37
  • @Greendrake; It would clearly be unfair (as phoog says) for the judge to base his judgment on his own research without giving either counsel a chance to consider it, so in most cases he asks for their opinion on points he has thought of and they have not. If there is only one counsel, there is a problem. And on 2); yes, I said that as clearly as I know how. – Tim Lymington supports Monica Feb 9 at 21:33

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.