TRANSPARENCY IN NEW ZEALAND
14 May 2013
Transparency International New Zealand posted a news story on Voxy yesterday stating its
"emergent overall findings" into its
"National Integrity Systems review" "found that high standards of independence, integrity and accountability were generally met, although areas for improvements were noted. New Zealand also scores highly for fiscal transparency."
The story states a further report will be provided in July, with the full report concluding August 27th. The public are invited to provide feedback through the local autonomous chapter's website, but the site has been down since the story appeared.
The New Zealand government has less of a problem getting TINZ's ear than the public. The TINZ review's $400,000 budget is being funded by Crown agencies, including the Auditor General. TINZ Review Director Suzanne Snively (pictured) reports biweekly to Solicitor General Michael Heron or Attorney General Chris Finlayson and advises she will be paid $50,000 for her efforts. The story maintains the work is
"welcomed by Minister of State Services Jonathan Coleman and Labour spokesperson for State Services Phil Goff".
Ms Snively, an American whose most notable achievement could be making a personal fortune off NZ government contracts, currently as Principal of More Media Ltd, advised
kiwisfirst last month that she considers New Zealand to be virtually corruption free. When confronted with survey results which revealed New Zealanders are twice as likely to pay bribes as Australians, she suggested the result was skewed by Australians' ignorance of how corrupt things are across the ditch. She says she prefers to think positively and claimed much of the dispute with TINZ's findings comes from people focused on the negative - including publisher Vince Siemer.
Director Snively freely admitted her private company exists on government contracts, but stated this and the Crown's funding of TINZ's review posed no conflict because the review was "objective" and controlled by "22 researchers" independent of the funders. Asked if researchers were paid, Snively responded "some are and some are not". Asked what the methodology was that made the review objective, Ms Snively could only state the review was inclusive of the entire country.
Transparency International New Zealand has been under a cloud of suspicion for years. Three years ago, Ministry of Transport bureaucrat Claire Johnstone was running the show along with her husband, active police detective Ash Johnstone. On Sinclair Robertson Associates' website - the private consultancy the Johnstones also ran - Mr Johnstone was listed as doing background checks for their private industry clients and the homepage proudly pronounced
"We deliver strategic development services for a variety of clients, ranging from iwi groups to central and local government, not-for-profit organizations and small to medium sized enterprise. We have particular expertise in analyzing and presenting an organisation's business case. This has allowed us to raise equity or access grant funding from government for many of our clients."
According to Snively, the chapter had 52 members at the end of last year and 12 directors. Most members are either public sector bureaucrats or contractors to the NZ government. Membership requests are routinely turned away, although Snively stated she has only turned down two memberships in the last nine months. Media Law Journal blogger Steven Price advised he had to go through an interview to join last year but Ms Snively disputes this, saying it is simply customary for TINZ directors to have coffee with prospective members as a welcome due to most prospects being already known to the members and that Mr Price apparently misconstrued the process.
Ms Snively does concede the chapter has been run poorly in the past but says she is committed to increasing transparency and membership, declaring it imperative that the chapter increase its funding from memberships and individual donations. She says the non-for-profit's failure to comply with the Incorporated Societies Act and confusion over its Constitution are due to poor administration prior to her becoming involved.
Last month, within a week of being informed by
kiwisfirst that TINZ had failed its statutory obligation to register its rules as an incorporated society, a December 2009 amended version of its rules were filed with the New Zealand Companies Office. The Berlin parent organisation expressed concern about the lapse and said it would investigate.
new zealand justice forum link
JUSTICE YOU CAN BANK ON
30 April 2013
Associate High Court Judge Jeremy Doogue this month ordered a Pukekohe businessman bankrupted on his gut feeling, granting a petition by Bank of New Zealand. The three page judgment dealt "expeditiously" if not entirely coherently with two affirmative defences.
The judgment debtor's defence was he had complied with the
Bills and Exchange Act 1908, but that BNZ had moved to bankrupt him for questioning illegal charges on his credit card in an effort to quell exposure of the widespread practice. A secondary defence was a class action suit that alleged the bank charges were unlawful breaches of statute, spanning the period of BNZ's creditor claim. In the past, banks in New Zealand have been found guilty of such practices, but the courts have customarily imposed fines substantially less than the gains received by the banks. In this case, Doogue J ruled the compromise settlement Richard Guy signed with the bank in a judicial settlement conference negated this second affirmative defence.
The dispute started over $5000 in fees which Mr Guy refused to pay in 2008 after getting unsatisfactory responses to his queries concerning the charges. BNZ initially explained the charges were covered by their credit terms. When pressed by Guy, they refused to provide any information or contracts as required under Part 2 section 24 of
Credit Contracts and Consumer Finance act 2003. Mr Guy is adamant his credit application with the bank did not allow for some of the fees BNZ was charging and that BNZ steadfastly refused to show him the credit agreement which supported their position.
BNZ's lawyers laid siege. The credit card "debt" exploded from $9,678 to $32,475 after BNZ invoked all their alleged rights for default fees, interest, and legal costs.
Mr Guy found out quickly the law had two applications in New Zealand when it came to the banks. A District Court Judge issued a default summary judgment on BNZ's affidavit that no defence had been received from Guy. Auckland District Court Judge Marybeth Sharp was forced to overturn the Judgment only after Guy provided evidence which resulted in BNZ admitting in court that they indeed possessed Guy's valid defence. Mr Guy's submissions seeking sanctions against BNZ's lawyers for misleading the court were altogether ignored.
After the default judgment was overturned, a Judical conference was arranged. It was at this point Mr Guy admits to making a mistake, unwittingly agreeing to a compromise with BNZ which effectively exempted BNZ from compliance with the
Credit Contract and Consumer Finance Act 2003. After this, the courts refused to entertain the alleged credit and finance violations which gave rise to the dispute on BNZ's claim the dispute was purely contractual due to the compromise subsequently reached. Mr Guy claims the BNZ's lawyers told him he could never win against the banks. Sage advice he did not heed.
While presenting a conciliatory approach to Guy, the bank obtained a subsequent District Court hearing. This is commonly called 'dual tracking'; in simple terms, it's when a lending institution enters into negotiations to settle a dispute at the same time are actively seeking a judgment in the courts. The U.S. Consumer Financial Protection Bureau this year outlawed the practice in America.
Although caught off guard, Guy still believed the law was inescapable. And he is no dummy, having built many successful businesses, in a career not characterised by advancing unsound ideas.
By any measure, his legal fight has been costly. Associate Judge Doogue accepted BNZ's claim for $32,475.06 plus costs of $8,377 in adjudicating Guy bankrupt, although the legal reasons were notably sketchy. One example was on the issue of the bill of exchange Guy claimed was received by the bank to settle the debt per the compromise. Doogue AJ did not let his confusion over the relevant law derail his grant to the bank, conceding in his judgment
"It is not clear what the legal significance, if any of this [bill of exchange] is". No mention was made of the Bills and Exchange Act 1908, although Doogue was sceptical a bill of exchange dated 2062 could settle the present value of the claimed debt.
Guy plans to appeal on the grounds Doogue failed to address the relevant statutory requirements in his brief judgment, or to apply well-established set off provisions in law, but admits "odds are not in my favour in the slanted Judiciary".
In a bizarre twist, days after the bankruptcy, in response to a complaint made by Guy to the Banking Ombudsman about BNZ's compliance with the Bills and Exchange Act, he received a letter from BNZ's National Manager for Marketing and Corporate Affairs which advised,
"As you will be aware your letter has been referred to the Bank as it appears that your complaint has not been fully through BNZ's internal complaint procedures."
Tell it to the judge.
JUDGES RUNNING WITH SCISSORS
8 April 2013
We are entering a new era in New Zealand where Parliament is being conditioned to ask our judges for permission. Conspiracy? Yes. As one comedian put it,
"the only time I commit to conspiracy theories is when something way retarded happens - like Lee Harvey Oswald acting alone."
We know New Zealand has the most diverse and independent group of wealthy white judges in the world. So it cannot be a conspiracy when all of them sign up to lobby Parliament against making legislation, as they have done recently with Family Law legislation, as well as the Register of Pecuniary Interests of Judges Bill. Can it?
Let us start with what New Zealand pretends to be - or, as the local "autonomous chapter" of Transparency International calls it, "the perception index".
According to the Ministry of Justice website,
"In New Zealand the courts function is based on the constitutional principle that the Judiciary are independent of the policy makers, the Executive and Parliament. ...the judges who interpret the law, do not create or determine the policies. Judicial officers are expected not to publicly comment on whether a policy is good or bad, or to have a view on what policy should be amended, or become law. Each judge holds his or her authority as an individual and the consistent interpretation of the law is by professional agreement only."
State propaganda rarely differs so greatly
Just last week, the
Weekend Heraldreported the Government had backed down from proposed family law changes after judges formed a wolf-pack to attack the legislation. Justice Minister Judith Collins responded the Executive and Legislature have "listened" and are prepared to recommend changes which kowtow to the judges law change demands.
But perhaps the funniest judicial highhandedness concerns the only proposed legislation to specifically affect judges since the Judicial Conduct Commissioner and Judicial Panel Act 2004. And as with the JCC Act, the judges - no doubt individually, in their professional agreement only - are well on their way toward gutting the bill.
The submissions of the Judiciary made to Parliament against the Register of Pecuniary Interests of Judges Bill claims it
"has the support of the judiciary and specifically the Chief Justice, President of the Court of Appeal, Chief High Court Judge, Chief District Court Judge, Chief Employment Court Judge, Chief Maori Land Court Judge and Acting Principal Environment Court Judge."
The full force personal lobbying effort seems to confirm the Ministry of Justice website claim of a constitutional separation of powers doctrine to be merely a theory, if not a downright conspiracy of misinformation.
But it gets more disturbing when one reads the judges personal reasons for wanting the bill killed. The judges do not claim it constitutes bad law. They argue that while it is recognised internationally as good law it is unnecessary here because New Zealand judges are presumably more honest than everywhere else.
Supreme Court Judge John McGrath, (pictured) "Acting Chief Justice", penned the subs which give as its reasons for killing the bill
"In its issues paper 'Towards a new Courts Act: A register of judges 'pecuniary interests?' the Law Commission identified the prevention of judicial corruption as one purpose of judicial disclosure regimes internationally. However, as the Commission went on to point out, there is simply no evidence of judicial corruption of this type in New Zealand, which presumably reflects factors such as the relatively small size of the New Zealand legal community and the nature of judicial appointment processes. Accordingly, prevention of corruption provides no justification for the establishment of a register of judges' pecuniary interests in New Zealand."
This is what the government funded Transparency International New Zealand have been telling us for years. We have no corruption-watch mechanisms in place because they are a waste of time. Hell, even lawyers do not know what "the nature of judicial appointment processes" are in New Zealand - but they must be better than the rest of the world because the judges appointed by these obscure processes say so.
The NZ judiciary have a long sordid history of secret dealings and even more secret financial relationships. We accepted it when judges queued up to pervert the evidence in the Mt Erebus crash inquiry out of some misplaced sense they were nobly protecting the reputation of our national air carrier. Public apathy was less explicable three years ago when Supreme Court Justice Bill Wilson was forced to resign over undisclosed debts to appearing counsel in a widespread cover up which NZ Bar President James Farmer QC secretly confided in an email to Sir Ted Thomas would likely result in bringing down Chief Justice Sian Elias if the matter were probed.
Perhaps Acting Chief Justice McGrath was in some Talaban cave with no radio during the 2010 Wilson conflict of interest saga which might have brought down the Chief Justice if probed.
Even so, it is an open secret that when he was Solicitor General, John McGrath routinely used his executive powers to stay Police inquiries into judges and, in at least two cases, refused to provide evidence held by Crown Law of judicial misconduct to the Police.
One such case concerned now-retired Judge Michael Lance who, unbeknownst to the police, had travelled down from his post in Northland to Rotorua in 1994 to preside in the fraud and blackmail trial of his son Simon's business partner. Despite audio-evidence of the blackmail, Lance threw the case out, in the process suppressing the court file and blasting the police for wasting the Court's time.
When police inspector John Dewar uncovered Lance's relationship with the defendant and his superiors sought to obtain the Justice Ministry's file on Lance for a possible prosecution, SG McGrath ordered the police investigation stopped, claiming it was a waste of time and not in the public interest.
In 2009, police eventually charged Judge Lance with vandalising cars in front of his Takapuna apartment after the third incident police responded to. The judge-alone trial let Lance off but his judging days were finally over. McGrath was personally responsible for extending this judge's criminal career.
While all this goes to prove His Honour Justice McGrath has committed a contempt of Parliament by claiming - despite his long personal history of covering it up - judicial corruption does not exist in order to kill a bill, no one expects him to be called out by the sheepish legal community. We apparently like our judges to tell ridiculously big lies and it is obvious from this example that a judge on our highest court has no shame in telling huge ones.
In any other country it would be a front page news scandal if the entire judicial community sought to disingenuously mislead the Legislature regarding judicial corruption in order to prevent legislation requiring disclosure of their business and financial interests. New Zealand judges may all be goose-stepping in unison to kill off legislation but to call it anything other than just a coincidence implies one of those ridiculous conspiracy theories we all despise.
DIVORCE STILL OVERRUNS FACTS
1 March 2013
There is a strategy for court division of marital estates in New Zealand that is tested and true among the powerful partisans. For players unaware of these unofficial rules, the experience can leave them destitute.
The frequent affront to laws of equity in divorces is compounded by a court system which financially punishes those who persevere for their just share.
Linda Johnson can relate. After 31 years of marriage, her 14 year divorce battle against an impoverished accountant with dozens of real estate holdings and even more company directorships is the stuff of New Zealand Court legend. Early on, she was tendered a cheque for $6,000 as settlement. She would have been better to take it.
Spoiler alert: Other than some household chattels, Linda has received nothing so far in her divorce. Instead she is saddled with hundreds of thousands in legal fees, including costs awards to her ex-husband's lawyers.
Linda's court process was typical and starts off balanced. Both parties appear. The judge makes procedural orders to facilitate the orderly valuation and subsequent division of the marital estate. Evidence of assets and claims by both sides are put forth.
This is where unofficial rules often take hold. Where there is an 'old boy' partisan interest, the judge is lobbied, if not chosen. The 'connected' party in the defunct relationship gets a mate to value his or her assets at close to zero. Company direct control may need to be temporarily shed until the divorce is over. Trustees successfully stonewall the courts or, conversely, where old boy interests require, judges commonly rule trusts aren't worth the paper they are printed on. A draconian costs regime which awards costs to lawyers on winning procedural applications and makes poor litigants pay these costs into court before they can have their applications heard invites financial bludgeoning of the disadvantaged, or what we call in New Zealand "natural attrition".
In Linda's case, it appeared early in proceedings the late District Court Judge Peter McAloon wanted to be fair in the face of obfuscation by Clive Johnson's lawyers. However, decorum being paramount in the New Zealand courts generally, the judge was extremely reticent to take counsel to task. In the end, the judge threw up his hands and ruled according to the limited, albeit suspect, information he had before him.
Appeals to the High Court ensued and the audacity of questioning a seasoned judge's acceptance that companies controlled by the husband were worthless and real estate holdings hocked to banks for more than they were worth were not warmly received. The general judicial tone which admonished "move on with your life" prompted the visceral reaction "what life?". For Linda, who was living at a friend's house while her ex was living in a beachfront Auckland home, the callous indifference of the courts to her legal rights was emotionally devastating.
It mattered little to judges that one of Mr Johnson's solicitors, John Mansfield, was found guilty by the Law Society of participating in a successful scheme to forge Linda Johnson's signature on sale of the family home in Auckland. Linda and Clive's daughter, who was living with Linda at the time in Australia, did provide an affidavit stating her mother knew about the sale even if she did not sign the deed. This appeared to keep the police out of the melee.
Then there is the court-appointed valuer - John Hagen of Feltex infamy - who valued one of Clive's companies worthless on the sole representation of Clive and was not shy about writing a brief report to this effect.
What matters most at this stage of the court proceedings, and generally, is maintaining the perception of continuity in the courts. No judge wants to put their hand up and concede justice went off the rails in the case 5, 10 or 14 years ago. The ingrained judicial dogma that court image is more important than a single man seeking justice before it invariably leaves a plethora of single victims. Lives might be ruined one at a time, but the victims can hopefully find solace in knowing they laid down their lives to maintain the integrity of the New Zealand courts.
CROWN JUDGE STRIKES BLOW FOR CROWN
14 February 2013
The New Zealand Bill of Rights Act 1990 may state Crown agents are accountable to the law and held to account in the Crown courts just like everyone else, but this statute exists today merely as perception. The case of
Clayton v Currie, currently playing out in the Christchurch High Court not only bears this out; the Crown judge is using it to send a two-pronged message to New Zealand lawyers to "sue Crown agents at your personal peril".
Vince Clayton and Linda Westbury are suing Crown Prosecutor Philippa Currie and the Attorney General over prosecutorial misconduct in one of the most expensive police stings in New Zealand History. The three year, 40 member police "Operation Rhino" infiltrated theft rings, recovering many containers of stolen goods in the process.
The sting also resulted in the conviction of at least three innocent people. Clayton and Westbury were two, convicted of knowingly receiving stolen goods. They spent 13 months in prison before having their convictions overturned.
The Crown case against them rested almost entirely on the evidence of the star Crown witness - one of the masterminds of the criminal enterprise who received a significant sentence reduction in another conviction for testifying against the people he sold goods to.
Notwithstanding repeat criminal offenders can still make truthful witnesses, credibility was squarely at issue - as was any motivation to lie. When defence lawyers for Clayton, Westbury and another defendant named Peter Machirus inquired of Prosecutor Currie whether a deal had been struck with "L" (not surprisingly, another criminal whose name is suppressed by the court), Prosecutor "C" provided the sentencing indication of the judge in the other matter - but somehow omitted the one paragraph which stated 'L' was getting a
"significant discount (off sentence) for the matter which involves the Christchurch trial" "C" was prosecuting.
Proving what one lawyer states "were the good old days when judges (merely) wiped their arses with the Bill of Rights", Associate Judge Rob Osborne, and Justice John Priestley in particular, have sought to perniciously use the claim as a bludgeon to beat the plaintiffs and their counsel into submission - in the diplomatic and caring Christian manner which makes Crown judges so darn likeable. The judicial (Crown) strategy is to strike out the stronger causes of action and let the plaintiffs and their lawyers spend themselves into oblivion on the more hopeless cause of action where the Crown has maximum discretion to award damages, or not.
Two actions in tort - misfeasance and deceit - were initially pleaded, along with a claim under s25 of the Bill of Rights that their fair trial rights were breached by the prosecutor who has since been disciplined for her conduct by the Law Society.
Early last year, on application by the Crown defence that all three actions be struck out without hearing, AJ Osborne struck out the deceit cause of action on the ground not all the essential ingredients in that tort were present. The Crown defence appealed Osborne's decision to let the other two proceed.
By reserved judgment, Priestley J struck out the misfeasance action last October, claiming it could not succeed in law because the prosecutor's role was 'ministerial',
"that function was to represent the Crown" in which
"there is no exercise of power".
Fortunately, Priestley J had an answer which was spun as a remedy to wrongful use of what he called
"shortcomings or excesses of a prosecutor": that is
"redress is available because judges, as the independent arm of government, will always ensure that the criminal justice system retains its integrity and fairness".
Just as in this case where those excesses caused innocent people to spend over a year in prison.
Having confirmed Crown prosecutors exercise no power on behalf of the State (thereby taking them out of the equation of a s25 claim where the Crown judge was the arbiter), Priestley gratuitously allowed the remaining s25 action to proceed, but not before observing,
"It is hard to see how their s25(a) right to a fair trial has been breached to the extent that they are entitled to civil damages over and above the remedies which they had and exercised in the criminal law process."
Lawyers are grasping the moral of this story even where the victims still have faith in the laws on the books. A victim of Crown wrongdoing and his money are soon parted.
KIWISFIRST'S MAN OF THE YEAR
11 January 2013
Attorney General Chris Finlayson, who came into his own in 2012 to become the standard bearer for the new New Zealand, is
kiwisfirst's Man of the Year.
Mr Finlayson had an extraordinary year. His popularity within the bureaucracy and legal community eclipsed that of popular Prime Minister John Key. It was perhaps fitting then that Mr Finlayson crowned his year by selecting himself for Queen's Counsel appointment on 13 December for his "contributions as Attorney General".
These many 2012 contributions included Mr Finlayson's selection of two Supreme Court judges, settling a half dozen Waitangi Treaty claims, cutbacks on legal aid, crackdowns on criticism of judicial decisions, a regime which no longer compels judges to look at the merits of claims before imposing prohibitive security costs, greater powers and less accountability within Crown Law, and filing more applications in the last two years to bar individuals access to the Courts on grounds they are vexatious litigants than in the last 60 years.
Though some of his legal reforms are draconian by United Nations standards they have rankled few in the domestic legal community. Part of the reason is the government agenda to promote the New Zealand justice system as exemplary sees secrecy and blind acceptance as necessary design facets. Another is Mr Finlayson brooks no dissent. This message was forcefully made in Finlayson's very public meltdown last year after Tony Molloy QC observed the poor quality of New Zealand judicial decisions was approaching fraudulent results. Though Finlayson privately agreed with Dr Molloy's claim that lack of specialist courts was to blame for a rash of poor court judgments, Finlayson won accolades from the judicial community and the Prime Minister for demanding Molloy turn in his QC credentials for his public criticism of the sick Crown court system.
Meanwhile, a criminal bar challenge to the legal aid cutbacks withered in the Courts. Human Rights Commissioner David Rutherford chose only to send a letter which expressed concern about the threat to human rights resulting from diminished court access, for fear the government would cut his organisation's funding (Rutherford, a sport law specialist, had recently been appointed Human Rights Commissioner). One law professor would only quietly say "When it comes to the law, Chris is saving us from democracy".
That few are willing to openly criticise the Attorney General is a reflection of his political power, if not inscrutable celebrity. Those that do - as with Labour Party 'red alerts' of Finlayson's deceptions - rarely garner much notice.
The conservative and gay 56 year old Finlayson was Catholic-educated before obtaining his law degree from Victoria University. Public order has long been paramount to his legal doctrine. He has never strayed from the old boy establishment which indelibly moulded his character and personal loyalties. Loyalties which served him well but occasionally got him in trouble.
In 2010, the shadow cabinet exposed Finlayson's hypocrisy in claiming integrity is determined by how a person treats their enemies compared to their friends, shortly before the Attorney General threw the weight of the government behind an ill-fated attempt to save his close mate Supreme Court Justice Bill Wilson from scandal at the same time he slyly attacked the Saxmere lawyers for exposing the judicial corruption.
Wilson resigned but Finlayson consequently lost his chance to meet his "hero" Australian Chief Justice Murray Gleeson, who - after being engaged by the Government to provide an "independent assessment" of Wilson's conduct to the Judicial Conduct Commissioner - was sent packing with $45,000 in the dead of night after Gleeson determined judicial conflicts were rampant in New Zealand.
Finlayson had to step aside from deciding the Commissioner's later recommendation to convene a judicial conduct panel to investigate his mate Wilson but not before instructing Judicial Conduct Commissioner David Gascoigne to direct Gleeson not to provide his advice in writing so as to avoid any trail.
Public missteps are few for Finlayson, assisted by programmes which have tightened the lid on information which may compromise his and the government's agenda. New Zealand may lead the world in court suppression orders but it was only last year the law was changed (Criminal Procedures Act 2011) to invoke criminal penalties for public breaches of suppression. Finlayson is convinced the key to increasing foreign investment in New Zealand comes down to improving perception. Despite fiscal budget tightening, Finlayson has ensured Transparency International's "perception index" rates New Zealand high by financially funding the local chapter and portals prepared to adopt the official line that New Zealand is free of corruption. Finlayson has had less success maintaining the perception with the U.S.-based World Justice Project, whose Rule of Law Index ranking of New Zealand fell sharply in 2012.
One thing Finlayson can count on is the New Zealand judiciary. In addition to selecting four Supreme Court judges since becoming Attorney General (including Wilson who later resigned), Finlayson has firmly ingratiated himself with the clubby judges by sanctioning new powers by the omnipotent Rules Committee, as well as fronting the watershed case ATTY GENERAL v CHAPMAN SC120/2009 which the Supreme Court used to exempt judicial acts from remedial compliance with the New Zealand Bill of Rights Act 1990 in September 2011. As the culture within Crown Law fomented increased cases of prosecutorial misconduct, Finlayson relied upon the courts to cover up the indiscretions. Still, the sheer number of cases caused enough panic within the Rules Committee that former member Judge John Joyce QC was tasked by Finlayson and Chief Justice Sian Elias with compiling a hit list of "abusers of court process". These include accountant John Slavich who was three times successful in getting District Court judges to approve private prosecutions of the Solicitor General and Deputy Solicitor General for perverting the course of justice, thereby forcing the Solicitor General to invoke his executive powers to stay the prosecutions. Finlayson responded by petitioning the High Court last year to declare Slavich a vexatious litigant. While civil litigants can wait more than a year for a trial fixture half as long, the Attorney General v Slavich case management conference in early December set a week trial fixture to commence 11 March 2013.
Judging from the New Year's Honours List, Mr Finlayson can be expected to be knighted soon after he leaves office. In the interim Chris Finlasyon QC has truly made his mark as one powerful Man of the Year whose bad side you do not want to be on.
12 December 2012
A week ago the sycophantic legal fraternity were nodding in agreement when Justice Minister Judith Collins said local boy Robert Fisher QC had gotten the government brief to do a "second
opinion" on retired Canadian Supreme Court Justice Ian Binnie's independent finding that David Bain was most likely innocent and should be compensated for spending 13 years behind bars. The glaring affront to justice of calling on a political lackey to besmirch an independent finding the government disagreed with was dissipated by Collins' patriotic-cloaked xenophobia that the distinguished judge lacked understanding of New Zealand law and made incorrect assumptions.
But today brought another day, another wake-up call for New Zealand justice, with Justice Binnie issuing his own press release - something the judge is evidently unaccustomed to given the 1,500 word tome. The release may turn 'Crusher Collins' into 'Crushed Collins". We can only hope it causes the legal frat to shed their dyed-in-the-wool sheepish ways of validating what passes for justice in Middle Earth.
Said Justice Binnie,
"I expected the Minister to follow a fair and even handed process leading up to that political decision. She is, after all, the Minister of Justice. The purpose of this e'mail is to give people the facts to enable them to determine for themselves whether or not the process has been even-handed.
"(Collins') press release states that my Report was referred to the Solicitor General for "advice". This makes it sound as though the Solicitor General is some sort of independent official whereas, in fact, his office attempted for almost 17 years to uphold a conviction of David Bain that New Zealand's highest appeal Court decided in 2007 was a miscarriage of justice -- a conclusion reinforced by Mr Bain's acquittal by a Christchurch jury in 2009. The Solicitor General was and remains part of the prosecutorial team. The opposing parties in the compensation inquiry were David Bain and the Crown Law Office. At a January 2012 meeting held at the Ministry of Justice for me to obtain the views of the Crown Law Office as to how the inquiry should proceed (a similar meeting was held with the Bain people) I was introduced to the then Solicitor General, David Collins, who had unsuccessfully argued the case against David Bain before the Judicial Committee of the Privy Council. He was not, and did not pretend to be, independent. For present purposes the Solicitor General is equivalent to the Crown Law Office.
It is a curious feature of this case that all of the "external" judges who have looked at the record of the case have rejected the arguments of the Solicitor General and the Crown Law Office regarding David Bain's guilt. By far the most prominent, of course, were the five judges of the Judicial Committee of the Privy Council, which reversed the Court of Appeal's decision in 2003 that no miscarriage of justice had occurred.
"The press release does not state whether my Report has also been given to the police, but I gather that it was, and in any event the mandate of the Crown Law Office, as well as the Solicitor General, has been to speak up for the police in this case, and it is understood that they will continue to do so. This is all very well except that the only interested party who has so far been denied a look at my report is the party most directly affected, namely David Bain."
CLAYTON'S JUSTICE FOR BAIN
5 December 2012
It seems the New Zealand government failed again to find an international judge to rule in accord with our "history and traditions", as section 3 of the Supreme Court Act 2003 euphemistically labels it.
Add Canada to the likes of Australia and the United Kingdom when it comes to independent legal advice sought from its most gifted judges and then dismissed as not in keeping with New Zealand 'legal traditions'.
Retired Canadian Supreme Court Justice Ian Binnie's (pictured) independent report to the government in
September determined David Bain was innocent on the balance of probabilities of killing his family in 1994 and should be compensated. Bain spent 13 years in prison before his conviction was overturned by the Privy Council in 2007 and then acquitted in 2009 after a retrial.
At the time, Justice Minister Judith Collins stated the report would be made public in two months. However, Minister Collins has now refused to release Justice Binnie's report and instead engaged local boy Robert Fisher QC to give a second opinion.
Mr Fisher was a High Court judge until then-PM Helen Clark rode him off the bench for viewing pornography from his court chambers. His recent success story is endorsing the Government's position in the Rex Haig murder conviction compensation claim.
Spurning world calibre judicial opinions has become an embarassment for New Zealand's international reputation. In 2009, retired Australian Chief Justice Murray Gleeson was invited to give advice into former Supreme Court Justice Bill Wilson's conflict of interest, but then quietly sent packing when he found the whole system was sick with undisclosed conflicts. The eminent Justice Gleeson's report was never released and the Judicial Conduct Commissioner has refused to disclose it in response to an Official Information Act request by
In 2003, the New Zealand Supreme Court replaced the Privy Council in England as the highest appellant court in response to the 2002
Taito v Q ruling which determined New Zealand Court of Appeal judges were guilty of systemic abuses of due process, including failures to consider appeals by poor litigants and enlisting the registrar to dismiss appeals.
Those Court of Appeal judges were appointed to the newly established Supreme Court.
Given these judicial traditions of shooting the messenger, Mr Bain's lawyer must have been thinking of other jurisdictions when he objected with the plea,
"By convention, you should accept it [the advice]. Why send it to a more junior person to review the top judge in the Commonwealth, who is independent? It's ridiculous."
The reality is independence has never had a friend in the parochial New Zealand legal system. As for an inability to follow convention or legal wisdom as the rest of the world sees it, ridiculous is as ridiculous does.
FICTIONAL (BUT CONSISTENT) JUSTICE
22 November 2012
Accountant John Slavich had no clue. Convicted of fraud in October 2006 after unwittingly fronting
a mortgage scheme presented him by a convicted fraudster, Slavich did his time in prison and sought to correct a fundamental breach of due process in the appellate courts.
The case for reversal seemed simple, to the extent Crown Prosecutor RG Douch did not wish to rely on the evidence of a convicted fraudster at trial - the prosecution's main witness - he wrote up a brief of evidence for a witness who had long before trial refused to sign it and expressly refuted it. Nonetheless, this "brief" somehow supplanted a transcript of a pre-trial deposition from the same witness.
Prosecutorial misconduct and a fundamental breach of natural justice: Slavich and his barrister could smell a Bill of Rights claim after clearing his name. But we get ahead of ourselves.
At his defended hearing Slavich elected a judge alone trial as a safer bet given the perceived absence of credible evidence. Justice Paul Heath presided.
In a reserved decision, six of the seven counts of fraud were upheld. It was only when the court decision relied upon the unsigned and discredited brief as leading "credence" to the testimony of the man who was the prosecution's main witness that the switch became apparent.
The late John Haigh QC took the matter to the Court of Appeal, where Justice Robert Chambers was the only permanent judge sitting and went on to write the judgment dismissing the appeal. Chambers J accepted the Crown prosecution thusly, "
On the Crown case, the central figure with respect to both transactions was a fraudster whose real name was Les Orchard... Mr Orchard was the key Crown witness at Mr Slavich's trial. By the time of that trial, he had already been dealt with on a large number of fraud charges, including charges relating to the (two) transactions."
So far, so good. But the tide turned when Chambers claimed not to grasp the argument or facts:
"We found it difficult to pin down exactly what Mr Slavich's complaints about the judge's reasoning were. This was partly because Mr Haigh's oral submissions departed significantly from the written submissions filed in advance of the hearing." Immediately after this stage-setting, the storm surge of Cyclone Chambers came:
"To a large extent, the complaints stemmed from the judge's acceptance of Ms Gibbs's evidence, evidence which Mr Haigh submitted was inadmissible for the reasons advanced under the first issue. We have rejected that complaint."
Perhaps one our finest QC's confused Judge Chambers on the complex appeal submission that the prosecution did a switcheroo of "Mrs Gibb's evidence" with the prosecution theory which she had earlier refuted.
Chambers punctuated his point for public consumption, noting he agreed Mr Orchard's evidence may not be satisfactory to maintain a conviction but that "ample evidence" of Mr Slavich's guilt was before the court. Unsaid - and what Judge Chambers certainly knew - was the trial judge thought the prosecution's now-shown-to-be-false brief was the evidential bridge to conviction.
If only he had a dollar for every false conviction he might be rich enough to lick his wounds and get on with his life worry free. But Slavich took the matter to the Supreme Court after Haigh QC refused to take his money for such an appeal on the basis the Supremes would now almost certainly cover it up as well. Sound advice which proved true. The Supreme Court refused leave, citing Mr Slavich's grounds as essentially a material conflict between Mrs Gibbs' brief and her deposition transcript - confirming that once a NZ prosecutor files evidence in the name of a witness it is easier to move heaven and earth than to simply get it properly labelled.
Confident Justice Heath would take personal umbrage to such an obvious injustice, Mr Slavich filed an application seeking a correction or declaration from the judge. But by now, as with every court f*&^ %p challenged and not corrected on the first go, too big of a hole gets dug. Justice Heath conceded what "evidence" he had before him but refused to connect the obvious dots.
Complaints to the Judicial Conduct Commissioner received the complimentary acknowledgment months before the eventual declination premised upon a claimed lack of jurisdiction to consider them.
Where does that leave John Slavich? A convicted fraudster. And if Sir Thomas Thorp chose to write another book of criminal convictions in New Zealand, Slavich might likely fall in the 39% considered wrongly convicted. For the rest of us, count our blessings - for now.
Chambers J was promoted to the Supreme Court earlier this year.
HEAD OF BENCH COMPLAINTS MORE EFFECTIVE THAN JUDICIAL CONDUCT COMMISSIONER
17 October 2012
The Office of the Judicial Conduct Commissioner, established by statute in 2004 to address misconduct complaints against judges, has been overwhelmed of late, recording the number of complaints have increased 300% annually in the last 5 years, from 101 to 328. This equates to an average, in the last year alone, of more than 1 ½ complaints for each of the 205 judges in New Zealand.
To counter the increase Commissioner David Gascoigne has implemented an express lane to dispose of some complaints on grounds each challenges or calls into question the correctness of a judicial decision - therefore placing the complaint outside his jurisdiction. The Commissioner has gone so far as to declare a complaint against a judge altering the court record cannot be investigated by his office on the basis any investigation would amount to a challenge of a judicial decision.
While Gascoigne's predecessor Ian Haynes routinely asked judges to provide a response to complaints, this practise has been largely dispensed with under Mr Gascoigne. The Commissioner's reasoning is that asking a judge for an explanation of the alleged misconduct undermines the official position that the Commissioner lacks jurisdiction to proceed at all.
Other than confirming a written acknowledgement is sent out to the complainant and named judge for each complaint received, the Office of the Judicial Conduct Commissioner refuses to provide information of his actions in handling complaints, claiming he holds an exemption from the Official Information Act 1982.
Meanwhile, affected persons who choose to make misconduct complaints directly to the Head of Bench find they are more likely to obtain a response from the judge complained against, as well as a reasoned disposition of the complaint. The Heads of Bench include Sian Elias for the Supreme Court, Helen Winkelmann for the High Court and Jan-Marie Doogue for the District Courts - with whom a protocol has been established with the Family and Youth Courts. HERE is one such Head of Bench response
Surprisingly, the Ministry of Justice provided an Official Information Act response to
kiwisfirst stating no statistics are kept regarding judicial misconduct complaints made to the Head of Bench because complaints are referred to the Judicial Conduct Commissioner.
It is vexing paradox that the Office of the Judicial Conduct Commissioner was established in 2004 to provide a mechanism for handling misconduct complaints against judges because the previous complaint structure of making complaints to the Head of Bench was deemed too secretive and partisan to provide any effective oversight.
Most lawyers contend the practice of appointing practising lawyers in New Zealand to hold practising judges in New Zealand accountability provides the key as to why the Commissioner is ineffectual. Mr Gascoigne is a practising law partner with Minter Ellison who often conducts his oversight-of-judges function from his law firm office on The Terrace in Wellington.
LAW SOCIETY IS "HART-LESS"
19 September 2012
The New Zealand Lawyers and Conveyancers' Disciplinary Tribunal on Friday granted the petition of the Auckland District Law Society and
struck off Criminal Barrister Barry Hart from the rolls.
The penalty followed the Tribunal's finding 2 August 2012 that Mr Hart was guilty of four charges of misconduct ranging from overcharging to impeding the Law Society's investigation by not releasing a file.
With the recent retirement of Peter Williams QC, who provided evidence in support of Hart, Mr Hart was the most renown, if not most senior, lawyer on the criminal bar with 46 years experience. In dishing out the economic equivalent of capital punishment, the tribunal also ordered Hart to pay $161,429 in related costs. By consent, he was additionally ordered to reimburse one of the complainants $20,000 in legal fees.
The Tribunal rejected suspension or professional supervision in the penalty phase, citing similar complaints dating back 30 years, as well as Mr Hart's lack of participation in the proceedings or cooperation with the Complaints Committee which prosecuted him as reasons. Despite initially putting forth a number of witnesses, Hart inexplicably failed to engage in the Law Society grovelling which is a well-accepted essential to any lawyer's defence against such charges - a tactic which had previously worked for at least one member of the tribunal and one member of the Complaints Committee involved.
Mr Hart was in the Auckland High Court on Tuesday seeking a stay and appeal of the decision. Likely dates have been proposed for mid-November. Possibility of a judicial review was also raised by Mr Hart, who appeared for himself.
Mr Hart is reported to be in a solvent financial position despite his recent tribulations, including a yet to be fulfilled settlement agreement to repay another client $150,000, involvement in a failed property development initially valued at $26 million and ANZ National reportedly calling in $30 million in property loans he is a signatory on earlier this year.
DAMN THE TRUTH
2 September 2012
If there was a right-thinking person left who believed Queen's Counsels were expected to be other than political shills in New Zealand who cover up judicial misconduct, last week provided the awakening.
The Attorney General's visceral public position on the proliferation of poor judicial decisions in NZ was equally enlightening.
After Tony Molloy QC came out to the
National Business Review criticising the poor quality of judicial decisions in New
Zealand, Attorney General Chris Finlayson (pictured) publicly went on a personal attack of Dr Molloy, calling his criticisms "rubbish" and "deplorable", while demanding Molloy "consider surrendering his warrant as a Queen's Counsel" as a result and absurdly comparing New Zealand's most senior Queen's Counsel to a "vexatious lay litigant".
The attacks come notwithstanding the Attorney General's recognition in 2009 that New Zealand has a serious problem with substandard court rulings and that court specialisation - what Molloy was advocating - would help toward correcting it.
Dr Molloy specialises in trust and equity law and has said he is routinely embarrassed when he meets colleagues at international law conferences who ask him what the &%$# is going on in the New Zealand courts. He has written several articles critical of our judges fighting above their legal weight.
One such article was the November 2009
Offshore Investment publication "Cuckoos in the Nest", an article which ironically prompted AG Finlayson to phone Molloy to express his agreement with the criticisms and to further advise court specialisation was on his agenda.
However, Finlayson's principles fell away after Chief Justice Sian Elias objected to the sensible approach. The Chief staunchly advocates the "jacks-of-all-trades make better builders" approach to judicial duties.
None of this begins to explain the AG's vicious attack on an informed court critic who he knows has spoken the truth and whose criticisms he has long privately agreed with. The simple explanation has been put down to "old-boy cronyism", which puts perpetrating a myth above the inconvenient truth.
Shortly after the
Offshore Investment publication, New Zealand Law Society President Jonathan Temm sent a letter to QC's asking them to do their duty by turning on colleagues who express criticism of the judiciary. Paradoxically, the NZLS expressed open support for Fijian lawyers critical of judicial failures in Fiji.
It is indeed perverse that a country which prides itself on sport excellence is so committed to judicial ineptitude that the highest law officer in the land and the Law Society ferociously safeguard it.
Askewed national priorities aside, it is unmistakable that the targeting of one of New Zealand's preeminent legal scholars by the State for justly raising the alarm will have a disquieting effect on similar expressions. Although the depth of the problem has been an open secret in the legal community for years, Molloy's candour is unlikely to stimulate the needed change but, instead, create greater fear among lawyers in a country known to come down even harder on press exposés of judicial impropriety.
Until last week's outburst, relatively few lawyers in New Zealand were aware that the Attorney General was active in covering up judicial inadequacies in New Zealand and that the rule of law was under threat.
Meanwhile, Mr Finlayson has already appointed four NZ Supreme Court judges (NZ's highest court comprises five judges), including his former law firm associate Bill Wilson who was forced to resign months after the appointment for misconduct on the bench. Kiwisfirst was the first to break the story of the scandal.
HIGH PRICE OF INJUSTICE
30 July 2012
Whangarei resident John Colman is a rarity in New Zealand - a man who will stop at nothing to fight an injustice. His four year and thirty court appearance (so far) fight to expunge a wrongful conviction has caused many in the community to call him obsessed and every judge he encounters to call him
everything but right.
The retired Australian diplomat counters that after going 60 years without a criminal record he has a right to be obsessed with exposing his 2008 criminal conviction for using offensive language on his own property as an elementary breach of his rights. As far as judges, he claims to be optimistic that one day he will appear before a judge to whom the Bill of Rights matters.
It all began when some religious buskers refused to leave Colman's property and police were called. But when he demanded the police remove "the c***ts" from his property, the police arrested Colman for disorderly conduct.
Mr Colman immediately set out to showcase the absurdity of the police prosecuting a man for disorderly conduct in front of trespassers on his own property. Rather than withdraw a charge the police soon realised they could not win, they added a charge of offensive language to the disorderly charge.
One problem was neither the police nor the judge notified Colman of the new charge.
According to Colman, after Whangarei District Court Judge Maude found him guilty, the judge laughed at his protestations of never being informed of the charge. The Judge instructed the Registrar days later to not accept Colman's application to recall the conviction on that basis.
Undeterred, Colman filed an appeal against conviction in the High Court alleging his right to due process had been violated. This prompted a District Court Deputy Registrar to notify Colman that Judge Maude would take a favourable view of any request for a rehearing if the High Court appeal was withdrawn. So began what would be a series of complaints to the Judicial Conduct Commissioner, with Colman alleging unlawful interference by Judge Maude.
Colman did not know it then, but his problems had barely begun. His appeal appearance before Justice Christopher Allan left him uneasy as the judge did not appear to understand the gravity of someone being convicted of a charge they were never informed of, or of the police abusing process to prevent Colman from calling one of the police responders who had agreed to testify on his behalf. After five months without a decision, he complained to the JCC about Allan.
The diplomat was incensed when Allan J finally ordered a discharge without conviction, and not simply because it ended his appeal rights without clearing his record (a DWC is deemed to not be an adverse ruling subject to appeal). It was the liberties Allan J took regarding the evidence in supporting his finding that sent a chilling indication for the first time that the whole system might be corrupted, including Judge Allan's profound conclusion that the constable responder willing to give evidence on his behalf would not have helped Colman.
By Colman's account, 45 violations of due process by police and the courts had occurred and he was determined to make an example of his treatment to save others. He filed Bill of Rights Act claims against the Crown and appealed Allan J's ruling all the way to the Supreme Court, relying upon the contradictory language of the ruling "quashing" his conviction before discharging him without conviction. By law, according to Colman, the judge was functus officio after quashing his conviction and therefore could not "discharge" him.
The NZ Supreme Court ultimately refused to consider the legal incongruence by declaring s144 of the Summary Proceedings Act anticipated appeals of legal questions only where they resulted in adverse rulings - after contrarily stating the appealed ruling determined the conviction had been made out.
Only in New Zealand would the highest court rule that a criminal conviction was court-determined to be made out but that this was not an adverse ruling.
The Bill of Rights claims on the other hand have proven harder to get to a hearing than threading a camel through a needle, with judge after judge whittling down the claims - often declaring the limitations are by consent that Colman insists was never given - and in the process awarding costs of $20,000 in favour of the Crown so far.
Reached at his Whangarei home, Colman concedes he is no longer under any illusion that the courts are interested in justice and accuracy and admits to being depressed when he thinks about how bad it is. He realises his fate would have been different had he accepted Judge Maude's illicit invite to cover up the police and judicial misadventures. He says he is nonetheless determined to minimally create a record of what lengths he has gone to seek justice and believes he finally appeared before a judge last week who was engaged in asking the right questions and listened to his answers.
Of course, Colman has felt this way before. If there is a safe bet in this protracted legal battle which started over a four letter word and has already cost taxpayers an estimated $2 Million, it is that the country will go broke before the police or any judge admits a mistake.
SS CLAYTON COMMISSIONER
8 May 2013
With his smiling mug framed by the panoramic Wellington view out his law firm window, the man being interviewed literally and figuratively looks like a man on top of the world. "Meet Sir David Gascoigne, Judicial Conduct Commissioner", is the cameo lead in to last
New Zealand Herald's'what-passes-as-informative-news-story'.
After accurately reflecting the JCC's own statistics showing complaints of misconduct against judges are up more than 300% in 5 years, the yarn dispenses rose-coloured glasses to its readers and gets into at least one Bigfoot sighting.
In the logic which New Zealand bureaucrats are known for, the Commissioner counted the number of working days in the year, multiplied it by the number of judges and then multiplied it again by 5 to profess the result - 293,250 - is the number of "decisions" made by New Zealand judges last year. This, he says, demonstrates the number of complaints he receives pales in comparison to the amount of work judges do.
The reporter did not question the claim.
Considering the 40 judges of the New Zealand High Court issued only 921 recorded judgments through April of this year - which extrapolates to 69 recorded decisions per judge per year -
kiwisfirst did question Commissioner Gascoigne on where he obtained his colossal data.
The knighted one - still beholden as a senior partner of mega lawfirm Minter Ellison to the same noble judges whose conduct he in turn oversees - responded through his horseman that this was only intended as a
"rough estimate", before elaborating
"some of the figures he used may be significantly over or under inflated (for example, the average number of decisions per day, taken across the whole judiciary)".
A further inquiry as to where the "rough estimate" derived and whether it was appropriate for the Commish to publicly defend judges given his "independent" statutory role to hold them accountable for their conduct brought this polite response:
"the Commissioner was merely trying to get across to the journalist the point that the ratio of complaints compared to the number of interactions people have with the judiciary is very low. He used a rough estimate of a possible number of decisions. Obviously there are a great deal more occasions when judges interact with people and decisions are not issued. The Commissioner does appreciate the distinction between issues relating to judicial conduct, on the one hand, and the substance of decisions, on the other. He, and I, also consider that little purpose would be served by continuing this exchange of correspondence."
The unfortunate reality is any lawyer who makes a complaint to the JCC places their career in jeopardy, and this is widely known in the insular NZ legal community. Greg King, Chris Comeskey, Evgeny Orlov and Dr Frank Deliu have all been the victims of Law Society investigations prompted by complaints about judges' conduct. In one audacious case, then-Chief High Court Justice Anthony Randerson wrote a letter to the Law Society asking for disciplinary action to be taken against Deliu and Orlov for making a complaint about Rhys Harrison J. Deliu, in turn, filed a complaint against Randerson J alleging interference with a statutory complaint process Parliament set up for lawyers, including secreting privileged correspondence from the JCC and using taxpayer-purchased court letterhead to engage in the interference. (Months later Gascoigne dismissed the complaint as "vexatious" without obtaining a reply from Randerson).
It is not only the Stalinesque retribution lawyers face. The most disturbing evidence of judicial misconduct is routinely "fixed". Before the JCC existed, the same Judge Randerson dismissed a complaint against fellow judge Judy Potter for ruling in favour of her brother-in-law in an undisclosed conflict on the basis her ruling was "procedural" and did not go to the merits of the case!
As Commissioner, Gascoigne has avoided such rationalisation altogether, dismissing at least a half dozen complaints of equally serious judicial conflicts of interest by simply claiming section 8(2) of the Judicial Conduct Commissioner and Judicial Panel Act 2004 prevents him from
"challenging or calling into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a judge in relation to any legal proceedings".
It is a statutory regime where judicial conduct is so narrowly defined that judicial rape is classed "legal research", off limits to the Commissioner's authority over "conduct". Ninety percent of the complaints are dismissed without investigation or comment from the judge involved. Intrepid Human Rights Lawyer Tony Ellis intones what informed lawyers have learned about the process in general - making complaints to the JCC "is a waste of time as there is no effective remedy".
It is the unsuspecting public who remain convinced the JCC provides legitimate oversight. In the right company, Gascoigne likes to mention that he referred 3 complaints to the Attorney General in 2010. What is not mentioned is those 3 complaints all dealt with former Justice Bill Wilson's financial conflict with respondent's counsel in the Disco v Saxmere appeal but, more importantly, the JCC twice dismissed those complaints before retired Court of Appeal Judge Sir Ted Thomas (the maker of one of the complaints) spilled the beans to the
New Zealand Herald.
The instilling discipline of the press is something Mr Gascoigne has since sought to neutralise with convincing talks to unquestioning reporters about how difficult his job is due to complainants who misguidedly use his office as a vehicle to gripe about a judge making a decision they disagree with. In his latest campaign, the Commish also wanted the public to know he has yet to find a genuinely corrupt judge.
Whether he is blind to corruption or simply has a unique standard, it is a personal blessing that Mr Gascoigne has never seen evidence of a corrupt judge in New Zealand. Maintaining himself as the beau of the bureaucratic ball depends on him never finding a corrupt judge.
JUDGES PUSH PARLIAMENT TO PROTECT THEM
20 April 2013
New Zealand Judges have ganged up to push Parliament into considering legislation which gives them greater privacy, stating criticism of judges - what they called "unwarranted and improper attack" - is increasing on internet sites; adding complaints to the Judicial Conduct Commissioner, while "appropriate in principle", are frequently being used "essentially to harass judges".
Eight judges, including the Chief Justice and Acting Chief Justice of the Supreme Court, expressly endorsed the submissions to the Justice and Electoral Select Committee. However, the cover letter asserts it has "the support of the judiciary".
Among the host of unsupported claims, the judges' submissions declare
"the judicial complaints process... has been used largely by disgruntled litigants who are disappointed in the outcome of their cases."
In reaction to the broad-reaching and unsupported judges' submissions,
kiwisfirst filed an Official Information Act request with the Judicial Conduct Commissioner seeking to know whether he was the source of their information or expressed similar views.
Commissioner David Gascoigne responded that he has not expressed any opinion the complaints process is being used to harass judges or anything similar. He began by stating he has
"a statutory duty of confidentiality" which necessarily limits his disclosures. He finished by saying he could only speculate that the judges' submission to Parliament
"may reflect the views of judges who feel a disproportionate amount of their time is taken up with responding to some of the requests from me for comment about some aspect of the complaints that have been made about them".
If the Commissioner's speculation is adopted, and one considers the statistics showing the Commissioner dismisses 85% of the complaints without seeking comment from the judge involved on the ground he considers s 16 of the Judicial Conduct Commissioner and Judicial Panel Act 2004 prevents him from calling into question the judge's authority, then it becomes hard to believe New Zealand judges are so overburdened by this complaints process. Anything short of a judge dropping their knickers in court is deemed to be within their authority sufficient to preclude obtaining comment from them on a complaint before it is dismissed.
But then again, perhaps Parliament will not ask all these judges who signed the submission claims for the supporting evidence. In this sense, as in the New Zealand Courts, evidence may be a nuisance rather than a necessity.
DISCRETION TRUMPS SOCIAL SECURITY LAW
22 March 2013
High Court Justice Geoffrey Venning is a slight of hand master at the art of distraction and legal subterfuge. His Honour's rulings - where they are allowed to become public - can be instructional masterpieces of creative writing which bring fiction to life.
Arise the case of
Thompson v The Chief Executive
of the Ministry of Social Development from the murky world according to Venning J. Until the plaintiff objected to the Judge's suppression order in his judgment dismissing judicial review last month, she could only be identified as "T".
Treacy Thompson (pictured) of Tauranga believed the Judge's objective in ordering the suppression was to obscure her identity so that other alleged victims of the MSD could not find out the facts and law which lie behind Justice Venning's judgment. In this case, it is hard to dispute.
Ms Thompson suffered a shoulder injury requiring surgery, twice. She unsuccessfully sought additional temporary disability allowance beyond her disability of $59.12 per week under s61G of the Social Security Act 1964 for a $25 per week car payment. The Ministry paid off her $1,000 car loan instead. They then sought collection of payments from her for this "loan".
She filed judicial review of The Chief Executive of the Ministry of Social Development after her internal appeal to have this covered by temporary disability allowance was rejected.
It was not entirely unexpected that Venning would come down from Auckland to hear the matter, dismiss the review the same day and make an order of suppression in the case with a Wellington registry number. In a country where reporters have to run a bureaucratic gauntlet to see a court file, as well as pay a fee, no intrepid reporter could be expected to inquire behind the judgment.
Reading Venning J's judgment, one is led to conclude the TDA was for Ms Thompson's Sky TV subscription, because the judge accepts in the same paragraph Sky is first mentioned (9) that the $25 per week for the car was an allowable expense.
After relying upon a revisionist calculation of her disposable income provided by the Ministry for the purpose of the hearing - calculations which Ms Thompson asserted she had not seen and also disputed as contradictory to the official exercise previously conducted - Judge Venning never mentioned the car again. Sky TV would be.
But the Master saved the law for his best slight of hand. Venning concluded the Social Security Appeal Authority and Chief Executive were correct in determining (1) they had no discretion to grant a disability allowance of more than the $59.12 per week allowed by schedule 19 of the Social Security Act 1964 and (2) the appellant was not entitled to temporary additional support.
To get there, Venning J "assumed" section 69C(1) of the SSA was a quantum limiting factor on Section 11 of the Social Security (Temporary Additional Support) Regulations 2005 - and in this case. As to the irreconcilable calculation tables, the Judge gave only the cursory acceptance "the result obviously changes depending on the inputs".
After the ruling, a frustrated Ms Thompson called Judge Venning clever, suggesting he disingenuously navigated his way around the law, operated on revisionist figures he knew had been created solely for the litigation and deftly evaded the inescapable fact she was entitled by law to receive the $25 per week for her car by creating the Sky TV diversion instead. She considers the ruling seeks to personally discredit her because her case discloses a systemic problem with how rent and temporary disability allowances are routinely calculated by the MSD.
Her application for leave to appeal Venning J's ruling to the Court of Appeal was declined by Judge Venning this week.
PITCAIRN MUTINY STRIKES NEW ZEALAND COURT
14 March 2013
In the artificial sovereignty of Pitcairn Islands known this week as Courtroom 1 of the Auckland High Court, a constitutional challenge against 3 retired New Zealand judges sitting on a Pitcairn Court of Appeal appeal has resulted in the full bench walking the plank.
Three days of legal argument culminated in Justices
Bruce Robertson, Andrew McGechan and
Judy Potter conceding they lacked jurisdiction to preside as they had not been properly appointed or sworn an oath in accordance with the 2010 Pitcairn Constitution.
Argument will continue in June as to whether the first set of unconstitutional bench appointments of the three judges and another are lawful. The British recently passed retrospective legislation in an attempt to legitimise the judicial appointments, an action being challenged as lacking legal power or effect.
In a concession by appellant Pitcairn Mayor Michael Warren which does not require the 3 foreign judges swear their oaths or conduct court business on Pitcairn soil, Pitcairn Chief Justice (and Manukau District Court Judge) Charles Blackie will preside over the three swearing their judicial oaths today in Courtroom 1, Auckland, in a sitting of the Pitcairn Supreme Court.
The first matter of business will be how the newly sworn judges will deal with the problem of their having presided over days of proceedings and numerous procedural rulings. Senior Counsel for the appellant Tony Ellis (pictured) is expected to motion the court accept the record from the improperly constituted court proceedings as newly made.
Pitcairn, a British colony of 54 inhabitants in the central south Pacific, is ostensibly a constitutional democracy. It is perhaps the only democracy whose government is 100% controlled by foreigners. The bicameral legislature is comprised of the British High Commissioner to New Zealand and the British Foreign Secretary, neither of whom are elected by or accountable to the citizens. The judiciary are New Zealand judges whose Pitcairn appointments are more obscure than the typical New Zealand appointment. Competency never being a hallmark of either, it was still a bit sad to see Mr Ellis giving a lecture to the bench on the Pitcairn Constitution, in circumstances where it appeared none of the judges had read it until very recently.
At the heart of the current appeal in Courtroom 1 is a criminal charge against the Pitcairn Mayor for internet access of child pornography. But this criminal proceeding has been vastly overshadowed by constitutional arguments which are expected to go to the Privy Council in England. Central among them is how a democratic Constitution can be founded upon two one-person legislatures, neither one of whom is elected by the people of Pitcairn.
It is a fight which New Zealand's premier human rights lawyer is relishing.
"How often do you get to argue a violation to the United Nations Charter?" says Mr Ellis.
SUPREME COURT RAISES BAR ON JUDICIAL RECUSAL APPLICATIONS
21 February 2013
The New Zealand Supreme Court yesterday ruled in
Rabson v Croad SC85/2012  NZSC 3 that the judicial procedure in dispensing with judicial disqualification applications is irrelevant if it can be alleged the underlying facts supporting the application are not in proper form or
considered to lack merit.
The Supreme Court ruling dismissed an application for leave to appeal against two Court of Appeal refusals to properly consider applications for judicial recusal. After Justice Rhys Harrison refused to consider the first application against Justice John Wild - by way of an unrecorded administrative Minute - the application was remade, with disqualification of Rhys Harrison sought as well.
In the second application, Rhys Harrison sat along with Ellen France and John Wild and, again by Minute, upheld his earlier Minute, raising the legal faux pas of Harrison being a judge in his own cause, as well as three judges now furtively acting to avoid public pronouncement of judgment with reasons.
The Supreme Court claimed the appeal against the allegedly-flawed procedure Wild and Harrison engaged in when preventing the recusal applications had been "overrun by the substantive appeal" - and that "irregularities in the procedures followed by the Court of Appeal" were subsumed by this question which the Appellant did not address in their submissions despite Justice John McGrath
(pictured) posing it in an earlier Minute.
That 19 November 2012 Minute by McGrath J advised the respondents they were not required to take steps in the appeal pending further direction of the Court. No further direction came, suggesting the Court had preliminarily concluded to dismiss the appeal without opposition submissions.
The Supreme Court then moved to dismissing the appeal against the Court of Appeal substantive decision of Harrison, Wild and France JJ.
Mr Rabson's appeal claimed the Court of Appeal improperly ignored his offset claim for rent from Vision Limited in upholding a High Court order he pay back Vision liquidator Croad $51,000 he had taken out of the company when he was a director - as well as evidence $18,000 of this amount was repaid by another Rabson company on Croad's demand. He asserted these were not considered in the Croad High Court hearing, which Rabson failed to attend. He claimed the Court of Appeal perpetuated legal errors by not addressing the High Court order was made in conflict with settled authorities and section 301 of the Insolvency Act which required "rigorous inquiry" by the court, rather than the formal proof approach adopted. This, and the High Court's judgment for $58,084.31 when the liquidator's claim was only for $51,000, were submitted to be fatal errors of law.
Without hearing, or input from the Respondent, the Supreme Court rejected all these submissions in refusing leave. The bench found the Court of Appeal had already rejected the factual grounds and there was no public importance to warrant appeal.
SAME OLD SHHHHHH
17 January 2013
The New Zealand public were last year told new imprisonment penalties contained in the Criminal Procedure Act 2011 for breaches of court suppression orders would be accompanied by restrictions on judges issuing suppression orders.
That was the official government line in the land of milk and suppression orders. What the public doesn't know won't hurt them.
Apologies first to readers for the censorship which follows,
the divulgence of which does not justify lock up in a New Zealand prison.
On (censored) March 2013, a criminal trial is scheduled to take place in the (censored) District Court where a (censored) accountant is charged with blackmailing a (censored) businessman. An interesting feature of the case is that Police are alleged to have breached a 2010 blanket suppression order in presenting the prosecution.
In response to the defendant's application for discovery which includes introduction of the 2010 civil suppression order into evidence, Justice David Collins last month ordered the names and factual details in the police prosecution to be suppressed.
Collins J was apparently distracted by his focus on the secrecy. His judgment neglected to address the discovery application. Collins did, however, rule the Police had acquired their evidence "independent of the civil case" despite their informant being a party to the civil case and the police relying on suppressed documents from that case. Collins expressed no concern about how the "independent" contempt of blanket court suppression orders occurred.
Ironically, the defendant is reported to be relying upon the precedent created by Mr Collins himself in
Solicitor General v Siemer CIV2010 404 8559, which successfully obtained a six week imprisonment order against this publisher for reporting a High Court suppression order which denied the eighteen Operation 8 ("terrorist") defendants their statutory right to trial by jury in December 2010 on the ground a New Zealand jury would likely use improper reasoning processes in reaching a decision. The then-Solicitor General Collins conceded that breach by
kiwisfirst did not create prejudice in the case and avoided the unlawfulness of the order by successfully arguing all court orders must be obeyed until overturned. That the Court had earlier denied this publisher standing to challenge the suppression order on grounds he was not a party to that prosecution was left unmentioned.
The defendant yesterday re-applied for discovery, alleging the judge failed to address the application. In addition to the 2010 suppression order, the discovery seeks financial records to support his defence of circumstances. His lawyer is also seeking to have Collins' new suppression order lifted.
Even before Collins' suppression order, the
Dominion Post had considered and rejected reporting the story because the suppression orders prevented disclosing... anything.
The saga began in June 2009 when the defendant alleged in court proceedings the (censored) businessman had sold shares in a company without a prospectus. The defendant followed this with an application to put the company into liquidation. Along the way, the defendant sought a compromise which would have the (censored) businessman (censored). The defendant was unsuccessful and the (censored) businessman, who sought and obtained the 2010 blanket suppression orders, alleged to the police the defendant had attempted to blackmail him, giving them evidence from the court suppressed civil case file. Two years later, the police filed charges.
Unfortunately this case represents a microcosm of court normality in New Zealand. Court staff are increasingly petrified of breaching judicial orders of secrecy, particularly since imprisonment penalties have come into effect. That the public is overwhelmingly unaware of the problem is merely a testament to how successful the widespread use of court suppression is in transparent New Zealand.
THE JUDGE WHO STOLE CHRISTMAS
24 December 2012
Paraparauma resident Malcolm Rabson made headlines last year when the Court of Appeal ordered him to share real estate purchased from a $1.3 M first division lotto prize with his former domestic partner Linda Gallagher.
Thursday he became homeless, having been evicted by the Court-appointed trustee of his and his former partner's trust, Wellington solicitor Wayne Chapman. It is the latest chapter in a protracted relationship split over an estate valued last year by the Court of Appeal at $2.6M, largely vested in three trust-held north Wellington properties.
Last week Chapman sought and obtained an eight day vacate order on the Paraparauma home from High Court Justice Stephen Kos (pictured). Despite Rabson filing an
application for stay and an appeal with the Court of Appeal on grounds he had a contract with Chapman to purchase the home per the Court of Appeal's order issued last December, Chapman's lawyer showed up Thursday with police and served Rabson a trespass notice - escorting him off the property.
A neighbour reported that by late afternoon all the belongings in the home had been moved out by the trustee. The vacant property is expected to be marketed for sale by the trustee.
An unusual feature Chapman relied upon to evict Rabson is the Court of Appeal judgment last December which directed Ms Gallagher was to receive her full $1.3 M share in cash before any payments from the trust to Rabson. Chapman sold the first two properties at a net 59% of valuations, claiming more money was needed from the sale of Rabson's home to pay Gallagher the $1.3M.
On Friday, the Court of Appeal rejected Mr Rabson's application for interim relief, claiming the trustee would be injuriously affected by the granting of the stay. Justice Rhys Harrison presided despite being the subject of an active bias complaint by Rabson to the Judicial Conduct Commissioner and bias appeal to the Supreme Court for secretly dismissing an application without hearing two months ago and then acting in his own cause by publicly upholding his own secret order when Rabson sought review.
The day before eviction Rabson was successful in a Family Court application for custody of his eight year old daughter over the holidays. Chapman had filed an affidavit in opposition, claiming Rabson would not have a home to bring her.
29 November 2012
If civilisation is the progress toward a society of privacy, the New Zealand judiciary has no doubt reached its zenith.
This was again confirmed this week when Attorney General Chris Finlayson (pictured) declared taxpayer-funded sojourns for the partners of our 206 judges is nobody's business. Weighing in on the Judiciary playing toad with a
Dominion Post request for how much the citizenry were financially supporting judges' spouses, Finlayson dissed through his publicist,
"Unlike elected representatives, there is no public interest, only a prurient interest, in publishing the minutiae of judge's expenses. It is an unwarranted intrusion into judges' privacy."
The comment was recorded in a DomPost article this week which reported $500,000 in taxpayer funded travel expenses was paid for judges spouses over the last three years. Over the same period, $18 million was paid for judges' travel.
But let not our delight at understanding a glimpse of an obscure system lead us to believe in the truth of what it demonstrates. This third of our government is so private that statutes expressly passed to make government more accountable and transparent - i.e., the Public Records Act 2005, the Official Information Act 1982 and the New Zealand Bill of Rights Act 1990 - do not apply to judges. Increasingly, even court judgments are kept secret; with one case currently before the Supreme Court (
Rabson v Croad) challenging the power of the Court of Appeal to dispense with applications for judicial recusal by way of unrecorded and unauthored minutes.
Few, if any, politicians yield the power of a New Zealand judge. And the public have no clue how these lawyers are appointed. Moreover, the old joke that you know a lawyer is lying because their lips are moving is transplanted by the dogma that NZ judges are never deceptive and do their best work in secret in order to protect others' privacy. This Orwellian view is aided by an enforceable code that exposing judicial misconduct can get a lawyer disbarred for bringing the judiciary into disrepute. In a land which champions the underdog, this attacking of just critics is unique - and more than a little perplexing.
Not for Finlayson though. As Attorney General, Finlayson appoints the judges. He will likely appoint 4 of the 5 Supreme Court judges before next election and - few recall - he actively and unsuccessfully defended his mate Bill Wilson, who ultimately resigned in disgrace from the Supreme Court in 2010 when his conflicts of interest could no longer be concealed. It is fair comment Finlayson will likely never admit witnessing a judicial misdeed.
Finlayson is dyed-in-the-wool loyal to a court system which his master has advocated is key to gaining more foreign investment. This explains why Finlayson went rabid when New Zealand's top equity lawyer, Tony Molloy QC, spoke candidly earlier this year about being embarrassed at international forums over the poor quality of judicial decisions in New Zealand. Loyal as he is to a diseased judiciary, and contrary to his public protestations, Finlayson could not help but to phone Dr Molloy to tell him he privately agreed with him.
Few fear Finlayson may ultimately suffer the same (unexpected) fate as his mate Bill Wilson. Since the Wilson conflict of interest debacle he has been on fire brigade tending to judicial conflicts which - in the case of Geoffrey Venning and Hugh Williams - were worthy of the judges privately bragging about. He has not lost his focus and the judiciary will likely not forget his unbridled loyalty. He has banked his professional legacy on the "she'll be right" Kiwi apathy and shows no sign of relenting his attacks as 'prurient' the occasional public interest in what lurks behind the black robes.
1 November 2012
Enter stage left, promoting the judiciary in New Zealand via last weekend's
Herald, Chief High Court Justice Helen Winkelmann (pictured) and Chief District Court Justice Jan Marie Doogue roll out their dog and pony show.
In the wake of public criticism over recent poor court judgments, the Chiefs are fronting for their judicial colleagues to inform the public just how accountable they are.
The article provided many quotes designed to instil public confidence and keep any need for the judicial watchman at bay. From Winkelmann:
"The requirements that judges work in public and that they provide reasons for their decisions provides the best means of accountability. Their decisions can be, and are, the subject of public comment and criticism."
Winkelmann's comments - intended to sound like a reflection of what occurs in Aotearoa - follow recent decisions issued by Her Honour which contain no reasons and have been suppressed from the public. A current example:
Kiwisfirst publisher Vince Siemer is before the Supreme Court on 15 November, facing six weeks prison for contempt for reporting Winkelmann denied trial by jury to 18 accused in December 2010, then "rubber stamped" the cover of the judgment with an order it be suppressed from the public. More than a year later the Court of Appeal concealed Winkelmann's reasons for denying trial by jury (potential jurors would "likely use improper reasoning processes") in upholding the conviction.
Although her public comments demonstrate chutzpah which is rare, Winkelmann's pretence is far from the exception. In the Court of Appeal this week, an unauthored and unrecorded 'Minute' was issued to dismiss an interlocutory application seeking disqualification of two judges for apparent bias.
It was ten years ago the Privy Council ruled in
Taito v Q that New Zealand Court of Appeal judges were involved in systemic breaches of due process in denying criminal appeals. The only certain change this last decade is New Zealand no longer have the Privy Council to appeal to.
Nor does any genuine mechanism for remedying judicial misconduct exist. Recently, the Judicial Conduct Commissioner applied to High Court Justice Mary Peters to strike out a judicial review of his dismissal of a conflict of interest complaint against Winkelmann J. His application invited the judge to endorse his view Winkelmann was not guilty of an ethical breach notwithstanding he rejected the complaint on the ground he lacked jurisdiction to challenge Winkelmann's "decision" to act the way she had done. An appeal to the Court of Appeal asserts the Commissioner breached his statutory duty by relinquishing his jurisdiction to make merit decisions regarding judicial misconduct to
"a member of the very small societal subset over whom he has any statutory power".
Last year, in
Chapman v Atty General, the NZ Supreme Court exempted judges from enforced compliance to the New Zealand Bill of Rights Act 1990 by a 3 to 2 vote.
Public Watchdog Penny Bright says the myth judges are above corruption has resulted in a refusal to put common sense mechanisms in place at the very time the Supreme Court has claimed laws which hold judges accountable threaten their independence and therefore are unenforceable. Bright's proposed solution is based upon recognised international principles,
"For genuine judicial accountability, three things are urgently required in New Zealand; an enforceable code of conduct, a register of judges' pecuniary interests and a requirement that court proceedings be recorded and parties have access to the transcript."
Ideas like these create shivers in the cloistered back hallways of New Zealand's courts. While Justices Winkelmann and Doogue know what has been revealed here to be just the tip of the iceberg, they continue to insist publicly that the best scenario is to leave the judges to police themselves.
There is nothing in the
Herald reporting to reveal whether they kept straight faces while delivering their message.
JUDICIAL REVIEW AN "INDULGENCE" IN NZ
18 October 2012
In another quest toward judicial discretion, Auckland Council lawyers Buddle Findlay have sought to curtail costs in Judicial Review proceedings by filing a Memorandum to the Auckland High Court claiming judicial review is "an indulgence from the Court".
In contrast, Section 27(2) of the New Zealand Bill of Rights Act 1990 mandates judicial review a guaranteed right, in keeping with New Zealand's international commitments to the rule of law.
The Judicial Review claim challenges a District Court ruling by a Justice of the Peace upholding a $300 dog fine from Auckland Council. The Council posted the fine to the registered owner after a complaint by a neighbour the dog had "rushed a person". The owner contested the charge and fine.
The grounds of the judicial review are that the owner was not served notice of the hearing, the decision of one JP was ultra vires where two JP's were required to decide the matter, and the JP's claim a dispute notice by the owner was an "admission of liability" was a mistake of fact.
CROWN LAW ATTEMPT CALLED REPREHENSIBLE
5 October 2012
The degradation of the rule of law within the Crown Law office is so great, it seems, that two solicitors, including senior lawyer Madeleine Laracy, this week asked for an "oral application" to strike out a High Court claim in a case management phone conference.
request for the oral application was made by Memorandum filed 1 October 2012, two days before the phone conference. The action is believed to be unprecedented. The High Court rules unequivocally provide time for an opposition to be filed, as well as require all strike out applications to be heard in open court.
Associate Judge Robert Osborne rejected the request, noting that it was "inappropriate" for him to consider the matter as the claim concerned alleged contempt by a case officer in his registry.
Osborne AJ still directed an expedited hearing be set for 14 November 2012 before passing the matter to an unnamed "visiting judge".
Many of the systemic abuses which symbolise Crown Law practices were considered by many to be purged by the appointment earlier this year of former Solicitor General David Collins to the High Court bench and the exodus of his deputy Matthew Palmer, who was reportedly miffed at being passed over for the vacancy. This recent abuse seems to demonstrate that it is more difficult to change the spots of a leopard than cutting off its head.
COURT OF APPEAL OVERTURNS COSTS ORDER AGAINST COUNSEL BY ERRANT JUDGE
9 September 2012
In a case full of New Zealand precedents, the Court of Appeal last week overturned a four year old indemnity costs order of $11,125 imposed against Auckland Barristers Evgeny Orlov and Dr Frank Deliu by (then) Auckland High Court Judge Rhys Harrison (pictured).
The unprecedented order against plaintiff's counsel was
made in favour of the Crown on the judge's own initiative. It came after Harrison J struck out a judicial review of a Family Court order which sought to challenge the process by which the State removed children from their parents. In striking out the unprecedented judicial review, Harrison J criticised counsels' competency for bringing what he claimed was a "hopeless" action and "an abuse of process".
The Court of Appeal partially overturned the strike out two years ago, but the unprecedented costs order languished while the Crown sought a compromise agreement not to pursue payment if the costs appeal was not pursued. Mr Orlov took the compromise.
Had the Court of Appeal not overturned the cost order, it may have been seen internationally as an overt attack against lawyers taking cases the New Zealand government does not approve of. This was undoubtedly recognised by the Court of Appeal, although Harrison had taken pains to assert the costs order was to recover attorney for the child fees brought about by the plaintiff's judicial review action and this was the fault of the lawyers and not the plaintiffs. After indicating his intent to levy costs against the lawyers, Harrison had sought and received an application from the Crown-appointed lawyer.
The court tribulations began after a couple's three children were taken from their home on a Child Youth and Family Services recommendation they were unsafe due to a neighbour's complaint that the father - who was getting out of prison - was abusive toward his wife when he was drinking. The family, known cumulatively as "L" in court papers, is Maori. Prior to the strike out, their counsel had unsuccessfully sought Harrison's disqualification from the case on grounds he was biased against Maori and other minorities.
The judicial bias ground remained a focus before the Court of Appeal but Dr Deliu dropped this ground in oral submissions after the bench indicated they could overturn the order on the more evident ground Harrison's conclusion the claim was hopeless had already been undermined by the earlier appeal ruling reversing his strike out order.
Despite overturning the $11,125 costs order, the Court of Appeal declined to order costs in favour of the appellant on the basis substantial time during the appeal was spent on the unsuccessful bias argument.
LAWYER JUSTICE IN GODZONE
2 August 2012
We knew it would finally come to light. It seems the corrupt old boy lawyers in New Zealand are dying off at too great of pace for the new crop to replace them. In the past, Attorney General Chris Finlayson has spoken publicly about his difficulty in finding lawyers in New Zealand willing to take judicial appointments.
The queen maker need not worry.
It was reported yesterday that a recent law graduate was
found guilty of perverting the course of justice by fronting a shill to take a paternity test for her 2-year old in order to have the true father's name removed from the birth certificate.
Crown prosecutor Claire Robertson said imprisonment was usually warranted for such a crime, but did not seek it in this case because it might impede the woman becoming a lawyer - and maybe a judge some day.
The lawyer-to-be was given permanent name suppression by the court. New Zealand Law Society general manager regulatory Mary Ollivier was reported as saying a criminal conviction would not stop someone becoming a registered lawyer. And because of the name suppression order, no one would know.
Judge David Wilson stated he could "understand" the woman's motivation but not excuse the "lengths" she went to.
A Family Court judge had picked up the discrepancy and reported the woman to police. The lawyer-to-be then asked DNA Diagnostics to destroy the samples she had falsified after another District Court Judge ordered new samples be taken and tested.
In an affidavit to the court, the woman claimed to live in fear of the biological father.
The father, who also has name suppression, said he was disappointed with the sentence of three months community service considering the extensive deception of the court by his former partner.
SUPREME COURT TO CONSIDER IF JUDICIAL POWERS ARE TOO BROAD
20 July 2012
The NZ Supreme Court yesterday agreed to hear an appeal of a Court of Appeal ruling which declared judges have "inherent power" to make rulings. READ FULL STORY
12 July 2012
To those who have been driven mad as a hatter by often nonsensical NZ court judgments, here is a new one for the books.
kiwisfirst publisher Vince Siemer filed a 5 page claim and 54 page supporting affidavit which evidentially detailed that Auckland Insolvency practitioner Michael Stiassny obtained his 2008 defamation verdict by fraud and perjury. Given the gravity of the criminal allegations against the powerful Stiassny, Auckland High Court Justice Timothy Brewer approved the form for filing.
Remember the Lord Jeffrey Archer defamation case against the
kiwisfirst publisher provided documents in Stiassny's own hand which showed Stiassny had, in 2001,
[suppressed by court order] Paragon Oil Systems Limited fees and falsely claimed the company was
[suppressed by court order]. Stiassny's suit had claimed these allegations to be central to the alleged defamation and untrue.
The 2008 judgment awarded Stiassny $980,000 in what Court of Appeal Judge Grant Hammond later called "the worst case of defamation in the British Commonwealth". One unique feature of the case was Siemer had been prevented by court order from defending himself - or appealing the ruling. Stiassny was in the witness box long enough to state he "considered" the 2005 publications which were the subject of his defamation lawsuit were "untrue and defamatory".
Stiassny's lawyers did not respond to the strike out other than to apply ex parte for a strike out hearing, which they obtained before Judge Pamela Andrews on two days notice. Andrews' reserved ruling struck the claim out as an abuse of process. The judgment made a number of material errors which including the inaccurate claim Stiassny had filed an affidavit and issuing the judgment under an inaccurate case number.
But the case got "curiouser and curiouser", as Alice might say, after a recall application was filed which challenged the errors. After a month delay Andrews J issued a new judgment which stated she declined the "invitation" to correct her slips, only to incorrectly state in this judgment that the invitation had come from Mr Stiassny.
Meanwhile, Andrews judgment has been appealed to the Court of Appeal.
FIJI LEADS NEW ZEALAND IN RULE OF LAW EROSION
22 June 2012
Fiji is a smaller island nation than New Zealand. Perhaps then we can rationalise that parallels are few. Nonetheless, it was thought-provoking when the "Law
Society Charity" determined after a private visit last November that "the Rule of Law is lost" in Fiji. The report summary in NZ Lawyer stated
"there is no peaceful and lawful way to challenge government decisions, no democracy, that the independence of the judiciary cannot be relied on..."
Kiwisfirst wanted to find out what Fijians thought, and determine how much different their situation is from Kiwis. A correspondent visited in early June and found, with no exception, Fijians on the street believed the rule of law was sound and the government fair and stable. The survey was not scientific, but neither was the "Law Society Charity" visit.
That perception commonly differs from reality is understood. It routinely comes down to one's vantage point - or lack of one. In the best of circumstances, that difference is analogous to what the weatherman says and what you see when you walk outside. If you are in a country like Fiji and New Zealand trying to attract tourists, you hope the weatherman isn't being pressured by the State to declare it is going to be calm and sunny every day. In this scenario, however, we can take comfort that such attempts at State deception would be easily nullified by the pervasiveness of the weather on our existence. Not so with courtrooms, where even for the relatively few who enter, genteel decorum and often secret and delayed rulings can obscure acts of State oppression for years.
Yet the stark contrast within Fiji begs the obvious question: if the man in the street is wrong, how is it he knows so much less about his court system than some visiting foreigner. To begin to answer this question, it is helpful to know that, like New Zealand, relatively few people in Fiji have personal experience with the Courts. Survey respondents perhaps naturally consider the Fijian Courts are fair simply because the State professes Courts so, they do not see order breaking down and personally see no evidence to dispel what they are being told. To be candid, this is no different from the situation in New Zealand - or 1930s Germany.
The Charity report stated a particular concern in Fiji was the Administration of Justice Decree 2009, which removed
"the jurisdiction of the Court to accept, hear and determine, or in any other way, entertain, any challenges whatsoever (including judicial review) by any person to the validity or legality of any Decrees made by the President from 10 April 2009". In contrast, Kiwis never had such an unequivocal right against the State. More recently, lawyers in NZ frankly tell clients that bringing any action against the State is futile, and the courts are increasingly striking out Judicial Reviews ahead of hearing on grounds "the claim cannot succeed".
When it comes to acts of Judges, the situation is arguably worse in New Zealand than Fiji because we have been given the impression that judicial oversight exists in the form of the Office of the Judicial Conduct Commissioner. Though the Commissioner's one recommendation to convene a judicial conduct panel from over 800 complaints is statistically telling, it does not begin to expose the pretence of his existence (not to mention his only recommendation - in respect to former Justice Bill Wilson - was overruled by NZ judges). What has only recently come to light is that the JCC is dismissing as high as 80% of judicial misconduct complaints on a provision of his governing Act which appears not dissimilar to the wording of the Fijian Administration of Justice Decree 2009 which the Law Society Charity was so critical of. That clause states,
"It is not a function of the Commissioner to challenge or call into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a Judge in relation to any legal proceedings."
Under the Commissioner's liberal interpretation, "in relation to any legal proceedings" is all-encompassing. He is known to have invoked this clause to dismiss complaints concerning judges presiding over lawyers who were simultaneously acting for that judge in other matters. He may have invoked the clause to prevent a complaint of a judge dropping his trousers in court or a judge declaring he would not release his judgment for five years. We can only guess as to other real scenarios because the Office of the JCC is a black hole of information and lawyers are effectively prevented from speaking out under a draconian principle that to do so amounts to the disciplinary offence of "bringing the court into disrepute".
To the educated, the JCC was never going to be anything other than a Clayton's commissioner, with both appointees to date being senior partners of major New Zealand law firms. What they may not realise is that recently the JCC has taken the most proactive of positions in
protecting errant judges by seeking "summary dismissal" of a Judicial Review in the Auckland High Court against his refusal to conduct a preliminary investigation of a complaint (CIV2012 404 646).
Why is oversight so important? Since the loss of the Privy Council seven years ago, New Zealand judges have been on a fast pace to declare major statutes which bind the judiciary unenforceable. Among these were the Judicature Act, the Official Information Act 1982, the Public Records Act 2005 and, just last September, the New Zealand Bill of Rights Act 1990. The judicial fiats each gave judges extended licence to use discretion to contravene legal rights and transparency depending upon perceived circumstances, thereby raising obvious risks for abuse. It is not surprising then that some form of check was deemed necessary to mention in the Supreme Court's declaration (
Attorney v Chapman) that enforcement of the Bill of Rights Act was an unacceptable threat to their independence. In Paragraph  of
Chapman the Supreme Court relied upon the alternative remedy of making a complaint to the JCC.
Of course, the average man on the street would know none of this. This unseen nature underscores the rule of law threat. And the purposefulness of the secrecy which keeps the Courts' actions unseen is demonstrated by recent Court of Appeal and Supreme Court rulings which state litigants do not have a certain right to access their own court records despite clear laws which state they do.
While this worrisome treatment has caused one barrister to call the NZ Courts "The land of the long white shroud" it is but a harbinger of the real danger posed by judges unconstrained by the rule of law, operating in secret. In a conviction upheld by the Court of Appeal last month,
kiwisfirst publisher Vince Siemer was sentenced to six weeks prison for reporting that High Court Justice Helen Winkelmann denied trial by jury to 18 defendants in the Urewera raids. No law journal, society or local press has reported the fact New Zealand has become the first country in the "democratic and free world" to sentence a person to prison for reporting a criminal court judgment. Coincidentally or not, the Urewera defendants were reinstated their statutory right to trial by jury two days after Siemer was sentenced by a full bench in the Wellington High Court.
There is central tenet as old as the law itself that for justice to be done, it must manifestly and undoubtedly be seen to be done. As one senior barrister intoned, "
Show me one country in history where secret court proceedings have aided justice for anyone, let alone those critical of the State." However, when it was suggested that barrister should speak out about the erosion of court transparency in New Zealand, he responded that any attempt would be useless. Such apathy appears another parallel with Fiji, with the Charity reporting only 1 of 300 practising lawyers in Fiji refused to conform to a 2009 government decree which compelled approval of a government official before the lawyer could practise.
Like Fiji, New Zealand's lack of an effective independent Bar means there is unlikely to be any concerted objection to the rule of law erosion. Fear is also a factor, as Judges in New Zealand routinely promote Law Society investigations and prosecutions against lawyers who are critical - while protecting and rewarding lawyers who sheepishly come into the fold. Lawyers are reminded that Barrister Chris Comeskey was struck off on a complaint by a Court of Appeal judge for misleading the court on what was conceded to be a "secondary issue" suspiciously after being quoted in the press as saying NZ judges lack the skills of judges in other countries and too often leave their common sense on the window ledge. Conversely, when Julian Miles QC was caught out materially misleading the Court of Appeal on a central issue in a 2010 case, the presiding judges not only refused to allow release of the transcript, they issued a Minute in response to the request which ambiguously declared they had no concerns about Mr Miles' conduct. Only after the Law Society made the request for the transcript as a requirement to investigate a formal complaint did the judges acquiesce.
The saddest news coming out of the Charity report on Fiji may be that New Zealanders can no longer consider Fiji a refuge if erosion of the rule of law in New Zealand gets intolerable.
NEW SCHEME AT THE OFFICE OF JUDICIAL CONDUCT COMMISSIONER
9 June 2012
Judicial Conduct Commissioner has new method in disposing of complaints of misconduct by judges. Official Information Act requests to flush out how widespread the practice is have been refused. READ FULL STORY
21 May 2012
Tararua resident Jay Reid is a determined opponent of issues he sees as wrongdoing and corruption. Through his newsletter
Woodville Bulletin he has for years
provided a monthly, as well as folksy, synopsis of a "community advocate's" view of how money talks in the Tararua Council.
In a recently concluded proceeding of a full bench in Palmerston North High Court - where the Court's decision has been reserved - Attorney General Chris Finlayson seeks to have Reid declared a vexatious litigant. If so declared, Reid will reportedly the 8th person to be barred from future court access in New Zealand without advance court approval. His is one of three vexatious litigant claims Finlayson is currently pursuing.
In Finlayson's claim, Reid is said to have filed 77 court actions in the last 20 years. The cases fall generally into four categories: antiquated claims in the family court, equally antiquated claims in the employment court which sought Reid's reinstatement as a firefighter, actions taken as a community advocate and actions taken as trustee for those Mr Reid considered to be disadvantaged against the New Zealand Court system.
Reid was self-represented, as he could not afford a lawyer. Francis Cooke QC was appointed Amicus Curiae and recommended in his oral closing that the bench of Justices Keane and Woodhouse not find Reid vexatious even though Reid himself accepted he has not been successful in bringing a case to trial since 2007.
As to this lack of success, Reid said in closing,
"It is apparent when an objective analysis is undertaken of the respondent's litigation, that the raising of issues and the calling to account of powerful people is never going to equate to success in such a system." He spoke of how the adversarial nature of litigation required money to overcome access and discovery-thwarting applications by lawyers. "
The challenge to the withholding of information is the dominant theme of the respondent's litigation", compelling numerous applications to counteract what Reid said was
"The natural resistance of public officials to be accountable".
Mr Reid's reasoning for his past failures seemed eerily sound in looking at the Court of Appeal decision the week before his vexatious litigant trial. In the Appellate Court's dual dismissal of Reid's application for a preliminary hearing to determine his strike out application against the A-G and for discovery in the proceeding, the Court of Appeal declared
"we are satisfied that this Court can fairly and properly consider the issues raised about discovery in a substantive appeal after the High Court hearing." This backward approach to due process follows unprecedented media criticism of the rulings of the New Zealand Supreme Court in recent weeks, including a two-page article in 5 May's
New Zealand Herald.
There has been an explosion in lay litigation in New Zealand in recent years. The Legal Issues Centre of the University of Otago is currently conducting a study to determine some of the reaons why.
HOW THE SUPREME COURT DOES IT
6 May 2012
We are largely oblivious to how fragile the rule of law is in New Zealand. And that just two lawyers saved New Zealand from systemic rule of law abuses by Court of Appeal judges only ten years ago.
A big problem for Kiwis is few see the wheels of justice turning. Nor do we see when the justice train derails and is replaced by a picturesque facade.
Seeing inside the secretive New Zealand courts is believing. In this spirit
kiwisfirst is beginning a series of reporting on the actual appeal submissions and judgments coming out of the New Zealand Supreme Court. This way, readers can ascertain for themselves whether our five highest judges perform their crucial function forthrightly, disingenuously or something else. We may know little of these judges' qualifications or backgrounds, but comparing their rulings with the legal issues as they were put before them will prove enlightening.
The first in this series concerns a first division lotto winner whose de facto relationship split sucked in two legal trusts and a limited company. Justice John Wild determined in 2010 that the proceeding qualified for the "too-hard basket", waived his magic wand and declared a simple solution: the trust was breached by an "institutional constructive trust".
That Wild failed to comprehend the relevant law and acted capriciously in ignorance is not in dispute. Both parties appealed and the Court of Appeal overturned Wild's constructive trust decision. This was not the first time a Wild trust decision had been overturned. A prominent trust lawyer in New Zealand has written of Wild's - to put it diplomatically - exploitation of trust law without naming the judge and identified it as an international embarrassment of New Zealand jurisprudence.
By the time the appeal was heard, Wild had been appointed to the Court of Appeal. The transcript reveals the bench - which did not include Wild - was completely confused by Wild's decision but equally determined to fix it, with President Mark O'Regan stating amidst the fog "sending it back to the High Court is unattractive".
In the world of accounting and computer science "garbage in, garbage out" stresses the importance of accurate data. Not so for pompous judges. The ruling came out, with the Court of Appeal declaring a whole host of solutions which were not discussed. Not unlike Wild's constructive trust fix, the Court of Appeal claimed certain facts were not before the High Court in declaring this was a basis for its refusal to now consider them. This was untrue. One of the lawyers exclaimed they were embarrassed to be a NZ lawyer.
On to the Supreme Court where it took 3 months and repeated requests to access the Court of Appeal transcript. Ultimately, Supreme Court Justice William Young declined the second appeal to the Supreme Court to direct production of the transcript within 24 hours of Court of Appeal President Mark O'Regan conceding to production of a partial transcript in response to a Judicial Conduct Commissioner complaint.
The transcript was damning. Absolutely damning. It proved the Court of Appeal admitted to being out of its depth, fully understood the failures of process it nonetheless chose to operate under and should have known that its judgment declarations were based upon false facts.
Enter the Supreme Court judges, stage left. See how they responded to the appeal grounds which crossed three legal disciplines.
IS THERE A LAW LEFT WHICH BINDS NZ JUDGES?
9 April 2012
The Ministry of Justice last week responded to an Official Information Act request with a declaration -
"The courts are not within the scope of the Official Information Act 1982".
The OIA request by
kiwisfirst sought last fiscal year's expenditures for the Supreme Court and a breakdown of fringe benefits paid each Supreme Court and Court of Appeal judge.
Despite claiming immunity from the OIA, Acting General Manager of Higher Courts Rajesh Chhana revealed generally that Supreme Court judges spent $91,221 on taxis and limousines last year, while the Court of Appeal judges spent $81,140. Chhana refused to disclose judges' international travel expense but did divulge the five Supreme Court judges alone took a "domestic travel entitlement" of "73,122 kms" last year - equal to nearly twice the circumference of the Earth. Actual expense or breakdown of this domestic travel was refused
"for reasons of privacy and administration".
OIA requests in 2010 disclosed
Chief Justice Sian Elias was compensated $74,488 in travel expenses that year for her and her husband Hugh Fletcher - one of the wealthiest men in NZ. After sitting on those requests six months, the Ministry provided that disclosure under pressure from the
Dominion Post and
kiwisfirst, and only after the Chief Justice approved the release. The Ministry still refused to divulge expenditures such as limousines and catered parties at the time.
In addition to labelling disclosure of judicial perks exempt, the Ministry of Justice took two months to disclose that Supreme Court 2011 expenditures (excluding judges compensation) was $14.96 million.
The Official Information Act is the most recent legislation which the judiciary has exempted itself from in rapid succession since the loss of the Privy Council. Last year, in
Atty General v Chapman sc120/2009, the Supreme Court exempted remedy for civil rights breaches by judges provided by
section 3 of the
New Zealand Bill of Rights Act 1990.
In 2008, Justice Ministry Chief Legal Counsel Jeff Orr announced the Judiciary would not comply with the
Public Records Act 2005 which required all branches of government to keep accurate records of State business - claiming its practices would be dictated
"by custom rather than enactment". Again, the Judiciary - which still largely relies on judicial notes despite several recent scandals where judges were caught altering their notes - claimed that legislative acts which challenged judicial independence were not enforceable.
In 2010, the Judiciary was compelled to reveal its
Guidelines for Judicial Conduct, a 16 page set of rules adopted for itself which were touted internationally as demonstrating accountability but had been kept secret domestically. Even in this attempt at self-regulation, independence of judge from accountability was stressed by declaring in respect to its Guidelines,
"the guidance provided in these statements and comments is not intended to be a code of conduct."
In addition to not being bound by their own set of guidelines, New Zealand Judges have now declared themselves exempt from at least three major pieces of legislation which specifically bound them.
Rule changes which came into effect 1 February 2012 also give judges greater discretion to make rulings restricting court proceedings if they consider it is in "the interests of justice" to do so. What constitutes "interests of justice" is for each judge to determine as no guidelines are provided for exercising the discretion.
NO JUSTICE YET FOR SAXMERE
22 March 2012
"Crime takes but a moment but justice an eternity" seems an apt representation of what has occurred in the case of one of New Zealand's premier wool exporters.
The story is already legend how Canterbury wool producer Saxmere's lawsuit against the former wool board, where it sought to recover millions of dollars in fees for alleged legal abuses, snowballed into the biggest court scandal so far in New Zealand, resulted in the resignation of Supreme Court Justice Bill Wilson and - according to the former President of the Bar - would likely have resulted in bringing down Chief Justice Sian Elias if the matter had been probed.
While the issues of judicial conflict of interest which the Saxmere case raised are unfortunately common, the viral public awareness which ensued was unique - and unexpected. At the height of the scandal two years ago, the NZ government flew in retired Chief Justice of the Australian High Court Murray Gleeson to give an independent legal assessment of Justice Wilson's conflict with wool board counsel Alan Galbraith QC - Wilson's business partner whom he owed $242,000. Only then did Attorney General Chris Finlayson declare the government would pay the parties' legal fees after it was disclosed that Finlayson - who was a legal partner of Wilson in private practice - had sought to intervene as Attorney General "in the public interest" to defend Wilson's conduct and keep it quiet after his conflict of interest first surfaced; an intervention which had created as much angst as it did legal expense to the parties.
The eminent Justice Gleeson was unceremoniously sent packing and his report never mentioned by the government, let alone released. The Judicial Conduct Commissioner incurred a $193,000 outside legal bill, the advice of which would ultimately be overruled by the parochial NZ judiciary in favour of Wilson.
Saxmere submitted legal invoices to the Solicitor General totalling $600,000. The Solicitor General offered $276,000, claiming that Saxmere's counsel Sue Grey was not worth the $300-$400 per hour she charged. This appeared disingenuous after it came to light the Solicitor General never hesitated to pay Judge Wilson's counsel Colin Carruthers more than twice this hourly rate, to the publicly-reported tune of $475,000, but almost certainly more than this sum in the end.
As the culprit David Collins is appointed a NZ Judge, Saxmere's partners in the litigation have refused to accept the Solicitor General's inequitable offer, insisting on an indemnification from the statutory wool board body against future claims as part of any compromise. The same indemnification from the Saxmere interests to the wool board is a conditional requirement of the government's offer. When contacted last month, Saxmere director Peter Radford told
kiwisfirst he had not resigned himself to the offer but his lawyers have advised that, as an ex gratia payment, no legal mechanisms exist to challenge it.
It is with more than a little chagrin that Radford reflected on a situation which may go down in history for all the wrong reasons as far as he and the commercial law in New Zealand are concerned. After winning his claim in the High Court, that judgment being overturned by the Wilson bench at the Court of Appeal and the Supreme Court ordering a new appeal hearing, he laments the scandal obscured the important legal issues in his claim and he fears that politics, in the end, doomed an objective result at the appeal rehearing held in July 2010. The reserved judgment from that rehearing also went against Saxmere but, this time, by a 2/1 split. Justice Ellen France and Robert Chambers sided with the Wool Board, though it appeared to Radford that Chambers J had accepted Saxmere's legal position at the hearing. Justice Grant Hammond dissented.
That Robert Chambers J is a political ally of the Attorney General and was appointed to the Supreme Court late last year does not sit particularly well with Saxmere for good reason. While Saxmere struggles to get even a majority of its legal fees reimbursed, its principals have witnessed two of the Wool Board's counsel (Robert Dobson and Stephen Kos) appointed to the High Court bench. Coincidences they may all be but Saxmere directors have learnt, as are increasing numbers of business owners in New Zealand, that even judges cannot be counted on to disclose relationships which present a conflict of interest. This lack of transparency and predictability is detrimental to business in general. The primary question is whether business investors abroad have noticed this has occurred at the pinnacle of the New Zealand court system.