Chief Justice Sundaresh Menon: Opening Remarks at the Singapore Academy of Law Annual Lecture 2024

Singapore Academy Of Law Annual Lecture 2024

Opening Remarks

Friday, 19 July 2024

The Honourable the Chief Justice Sundaresh Menon
Supreme Court of Singapore

The Right Honourable Dame Helen Winkelmann, Chief Justice of New Zealand
Distinguished guests
Ladies and gentlemen

1.             Good evening, and a very warm welcome to the 2024 Singapore Academy of Law Annual Lecture. This year marks the 30th anniversary of the Annual Lecture since its inauguration in 1994. Over the years, this rostrum has been graced by the Chief Justices of several major jurisdictions. This evening, on behalf of the Academy, it is my privilege to welcome my good friend and distinguished judicial colleague, The Right Honourable Dame Helen Winkelmann, Chief Justice of New Zealand, as our guest of honour who will deliver this year’s lecture.

2.             Chief Justice Winkelmann earned her Bachelor of Laws and Bachelor of Arts in History from Auckland University. Upon graduation, she started her career as a law clerk with Nicholson Gribbin, which we now know as DLA Piper. She was admitted to the bar in 1985, and in 1988 – at the age of 25 – she became the first female partner and one of the youngest in the firm’s then 117-year history. She remained at the firm until 2001 when she began practice as a barrister sole, specialising in insolvency, commercial litigation, and medical disciplinary litigation.

3.             In 2004, Chief Justice Winkelmann was appointed as a High Court Judge. She was later appointed Chief High Court Judge in 2010, and as a Judge of the Court of Appeal in 2015. In 2019, she was sworn in as New Zealand’s 13th Chief Justice. Chief Justice Winkelmann also served from 2012 to 2019 as the Chair of the Institute of Judicial Studies, which provides continuing education to judges, and was New Zealand’s representative on the Board of the Australasian Institute of Judicial Administration (or the “AIJA”) until October 2020.

4.             Chief Justice Winkelmann has worked tirelessly to ensure that the New Zealand justice system continues to meet the needs of the communities it serves. As Chief High Court Judge, she introduced reforms aimed at improving the accessibility of court processes and the timeliness of the disposal of matters. She also led efforts to enhance public communications and outreach through, for instance, reintroducing the publication of High Court annual reports and establishing a Senior Courts’ Twitter account. Together with other judges, she adapted court procedures to better reflect New Zealand’s Māori and Pākehā cultures – for example, court sessions now begin and conclude in English and te Reo Māori.

5.             After the Canterbury earthquakes in 2010 and 2011, Chief Justice Winkelmann was instrumental in establishing the Earthquake List, which was designed to enable proceedings arising from the earthquakes to be dealt with expeditiously. This provided an innovative civil justice process that sought to uphold the rule of law and respond to the extraordinary needs of a community seeking to rebuild their lives in the aftermath of these disasters.⁽¹⁾ For this important work, Chief Justice Winkelmann received the 2013 AIJA Award for Excellence, together with Justice Forrest Miller.

6.             Chief Justice Winkelmann has also spoken on several occasions about the importance of ensuring that the institutions involved in the administration of justice remain connected to their communities.⁽²⁾ One aspect of this involves the mission of advancing access to justice, which – as Chief Justice Winkelmann has emphasised – is “the critical underpinning of the rule of law”.⁽³⁾ In line with this, she currently heads the Pacific Justice Sector Programme, which is directed at supporting access to justice and the rule of law in the Pacific region. But another aspect involves the law itself. In both New Zealand and Singapore, the development of the common law by the courts helps to maintain the “balance between continuity and change”.⁽⁴⁾ The common law is able to evolve and adapt to meet the needs of society in dynamic ways, while playing a stabilising role by reflecting and reaffirming the core values of our communities.⁽⁵⁾

7.             But maintaining this balance can be a delicate and difficult task, and I suggest that the common law will face some of its most exacting stresses in the coming years because of the rate and scale of the changes that our societies face today. To illustrate this, let me offer just three examples of common law developments that have taken place over the last decade:

1. The first is the development of the law of medical negligence. Advances in medical technology have opened the door to new medical procedures, but also to new ways in which they might go wrong. For example, in the context of in-vitro fertilisation, what remedy should be available following a mix-up where a baby is conceived using sperm from an unknown third party, instead of from the intended father? This question arose before our Court of Appeal in the ACB v Thomson Medical case,⁽⁶⁾ and led us to develop a novel concept of the “loss of genetic affinity” as a distinct and recognisable head of damage.
   
   
2. Another example is how contract law doctrines have been adapted for contracts formed by computerised trading systems. In the Quoine case,⁽⁷⁾ our Court of Appeal considered how the doctrine of unilateral mistake should be applied to contracts concluded using deterministic algorithmic trading software, and held that the inquiry should be focused on the programmer’s state of knowledge, given that deterministic algorithms are bound by the parameters set by their programmers.
   
   
3. The third area of development I want to mention is the field of climate litigation. The looming climate crisis will call for judicial responses as people around the world turn to the courts to challenge the actions of public and private sector entities in relation to environmental harms. This, I suggest, will be some of the most challenging terrain that the common law will need to navigate in the coming years. A number of landmark decisions have been issued in just the last few months. In February, the Supreme Court of New Zealand allowed the claims in the Smith v Fonterra case to proceed to trial.⁽⁸⁾ These involve tortious claims against certain greenhouse gas emitters based on public nuisance, negligence and a proposed new “climate system damage tort”. In March, the Supreme Court of India held that the Indian Constitution assures the right to a healthy environment and the right to be free from the adverse effects of climate change.⁽⁹⁾ And in April, the European Court of Human Rights held that Switzerland had breached its obligations under Article 8 of the European Convention on Human Rights by not doing enough to mitigate climate change.⁽¹⁰⁾ While the form and the scope of judicial responses to climate change will differ between jurisdictions, the essential point is that the courts and the common law can – and will have to – adapt and innovate to meet this daunting challenge.
   

8.             All of this makes this evening’s lecture very timely indeed. Chief Justice Winkelmann will be speaking about how the common law has developed to meet the circumstances of New Zealand society, while maintaining its strong ties to the global common law family. And while Chief Justice Winkelmann’s lecture will focus on addressing these questions from New Zealand’s perspective, I have no doubt that her insights will have great resonance with, and relevance for, all of us in Singapore – and indeed the broader common law world.

9.             On behalf of the Academy, I would like to express my sincere gratitude to Chief Justice Winkelmann for accepting our invitation. Ladies and gentlemen, please join me in warmly welcoming Chief Justice Winkelmann to deliver her lecture.

_{(1)       See Nina Khouri, “Civil Justice Responses to Natural Disaster: New Zealand’s Christchurch High Court Earthquake List” (2017) 36(3) Civil Justice Quarterly 316.
(2)       See Dame Helen Winkelmann, Chief Justice of New Zealand, “Access to Justice: We Need More (Than) Lawyers”, Address to University of Waikato / MacKenzie Elvin Law Lecture (24 August 2022) at pp 4 and 9; and Dame Helen Winkelmann, Chief Justice of New Zealand, Address to the Community Law Annual Hui (2 November 2023).
(3)       See Justice Helen Winkelmann, Chief High Court Judge of New Zealand, “Access to Justice – Who Needs Lawyers?”, Ethel Benjamin Address (7 November 2014) at p 3.
(4)       See Dame Helen Winkelmann, Chief Justice of New Zealand, “Picking Up The Threads: The Story of the Common Law in Aotearoa New Zealand”, Robin Cooke Lecture (2 December 2020) (“Robin Cooke Lecture”) at p 5.
(5)       See the Robin Cooke Lecture at pp 2, 5 and 25; and Dame Helen Winkelmann, Chief Justice of New Zealand, “What Right Do We Have? Securing Judicial Legitimacy in Changing Times”, The Dame Silvia Cartwright Address (17 October 2019) at p 6.
(6)       ACB v Thomson Medical Pte Ltd and others [2017] 1 SLR 918.
(7)       Quoine Pte Ltd v B2C2 Ltd [2020] 2 SLR 20.
(8)       Michael John Smith v Fonterra Co-operative Group Limited and others [2024] NZSC 5.
(9)       M K Ranjitsinh and others v Union of India and others (Writ Petition (Civil) No 838 of 2019) [2024] INSC 280.
(10)       Verein KlimaSeniorinnen Schweiz and others v Switzerland [2024] ECHR 304.}