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
The expression "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.

SOLICITOR GENERAL APPOINTED JUDGE

14 March 2012  updated
After 5 ½ years as Solicitor General, David Collins was appointed yesterday to the Wellington High Court bench by his mate Attorney General Chris Finlayson.

During his tenure as SG, Collins created a culture of rampant protectionism for the status quo and state secrecy. He implemented a policy of retribution for any lawyer seeking to expose State misconduct, orchestrating the firing of Saxmere counsel Sue Grey from the Department of Conservation for exposing misconduct by former Supreme Court Justice Bill Wilson and settling the 12 year Berryman bridge collapse and Army deception case in 2010 on the condition none of the money went to the lawyer Bob Moodie who took the case on a success basis. He virulently sought to defend Justice Wilson - who was Finlayson's former law partner - after it became public Wilson ruled in undisclosed conflicts of interest for his bank and then his business partner.

Collins filed a 100 page submission to, and sought to personally appear before, the Supreme Court in support of Wilson.

As his appointment was announced, a fortuitous example of the culture Collins created was playing out in the Wellington High Court, where his Deputy SG Matthew Palmer was being civilly prosecuted for misfeasance in public office for targeting former Inland Revenue solicitor Lysette Du Claire because she did not fully carry out his instructions to conceal discovery and legal advice Crown Law gave the IRD in 2009.

As his appointment was announced, a fortuitous example of the culture Collins created was playing out in the Wellington High Court, where his Deputy SG Matthew Palmer was being civilly prosecuted for misfeasance in public office for targeting former Inland Revenue solicitor Lysette Du Claire because she did not fully carry out his instructions to conceal discovery and legal advice Crown Law gave the IRD in 2009.

As SG, Collins was caught on three occasions filing materially false briefs in court. In one such 2006 case (M v Hunt), Justice John Wild suppressed the handwritten evidence of Collins' criminal conduct which would have landed a lesser lawyer in prison.

Collins follows former SG political appointees John McGrath, Terrence Arnold and Ellen France to the NZ Court.

NO JUSTICE FOR THE HAVE NOTS

15 February 2011
The dirty little secret of legal justice in New Zealand is that it does not exist in practice for a large percentage of the public. The cost of court filings, lawyers and security for costs in civil cases - security which alone can run over $100,000 - puts court access out of reach for all but the wealthy and abject poor.

And it is set to become much worse come 1 April. This is when new restrictions on legal aid come into force, existing legal aid service contracts with lawyers expire and the immediate effect of 1,500 active cases left lawyerless will likely be felt.

The Legal Services Act 2011 disestablished the Legal Services Agency and brought control of Legal Aid under the Ministry of Justice last July.  Lawyers wishing to qualify for legal aid services were required to reapply under the new regime by 31 December. Many refused because the new regime makes it much more difficult and tedious for clients to qualify and less financially viable for the lawyers.

The current situation is opposite to the regime Solicitor General David Collins squeezed hundreds of thousands of dollars in fees off of annually when in private practice. One example of the shift; the standard fees a lawyer can charge for an appeal have been reduced from $4,600 to $3,000.

Legal aid expenditures were $144M for the last fiscal year. The government has stated it expects to realise a $73M savings in the next four years as a result of the changes.

The change has many judges barely containing their glee at the expected increase in free time. Auckland District Judge David Harvey is one judge who last year praised that Legal Services were "going out of business" in favour of a new regime largely under the control of the judiciary.

Trusting policy to the judiciary is a concern for many lawyers and human rights advocates. History has proven such concerns justified. In the 1990's and early 2000's, the New Zealand Court of Appeal systematically denied appeals for those denied legal aid. Those unlawful judicial actions were soundly condemned by the Privy Council in the R v Taito ruling. The curtailing of legal aid eligibility and reimbursement comes in the wake of this damning indictment.  Meanwhile, the government lawyer, Simon France, who unsuccessfully defended the practice of systemic denial of appeals before the Privy Council, has since been appointed to the High Court bench. His wife Ellen France has been appointed to the Court of Appeal.

Rights of appeal to the Privy Council have been lost with the passage of the Supreme Court Act 2003, which resulted in appointment of the very judges found guilty of fundamental due process violations by the Privy Council to the new court of last right. It was perhaps predictable then that, in September 2011, in a Bill of Rights claim brought by an appellant adversely affected by the old "ex parte" appeal dismissal procedure, the Supreme Court rejected legal remedy and declared further that NZ judges are exempt from remedial compliance with the New Zealand Bill of Rights Act 1990 because it threatens their independence.

New Zealand Human Rights Commissioner David Rutherford told representatives of the Human Rights Network last year the Commission is concerned the new legal aid regime undermines the New Zealand government's international commitments concerning court access, but stated the agency's 64 permanent staff have had their level of government funding frozen, causing them to take a less active approach to the threat than they would like.

President of the New Zealand Bar Association Miriam Dean has expressed concerns the new regime, coupled with the creation of a government controlled Public Defence Service, threatens criminal justice, particularly if the PDS so expands that it weakens the strength of the independent criminal bar. For now, however, the Association is merely expressing a keen interest, stating it does not support the suggested strike or work to rule, viewing these as contrary to the public interest considering lawyers' professional responsibility to the court and their clients.

It seems for now that, despite the obvious omens and history, the Kiwi indulgence that "she'll be right" currently prevails when it comes to the trust we put in the incestuous bevy of judges we know so little about.

PARLIAMENT SLAMMED BY JUDGE FOR UNDERFUNDING PUBLIC WATCHDOG

26 December 2011
In an unprecedented ruling, two days before Christmas, Auckland High Court Judge Timothy Brewer condemned Parliament in an 18-page judgment which concluded Judicial Conduct Commissioner David Gascoigne's inability to deal properly with mounting complaints of misconduct against NZ judges is the result of Parliament's failure to allocate funding.

The judge referred his ruling to the Attorney General and Minister of Justice for corrective "executive action".

Even though the judgment concluded "the Act is not working as Parliament intended.  Indeed, it could be having the opposite effect" AND "the application brought by the plaintiff revealed a problem which needs to be addressed by the Executive", Brewer J "declined formal relief".  A subsequent Minute, issued hours later, indicated the Judge was reconsidering his decision based upon an email he received from Crown Law that the Commissioner had finally given a decision.

It is now to Attorney General Chris Finlayson (pictured) to correct the systemic undermining of the public watchdog or attempt to quietly sweep the matter under the bureaucratic rug.

The court action which prompted the ruling concerned a complaint against Auckland District Court Judge David Harvey which the Commissioner had failed to address after more than a year. The Commissioner's defence was that he lacked the resources to conduct his statutory duties and was even required to work out of his old law office.

While the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 requires "The Commissioner must acknowledge complaint and deal with it promptly", some judicial misconduct complaints have gone inactioned for as long as three years. The current backlog numbers over 200.

In the most recent fiscal reporting year, Commissioner Gascoigne took no action or dismissed 160 complaints and referred 4 complaints to the Head of Bench, where the chief judge is assumed to have secretly dealt with the judicial misconduct. No complaints were referred for investigation to a formal panel.

CONDUCT COMMISSIONER CHOKE CHAINED

12 December 2011
Business is good at the Office of the Judicial Conduct Commissioner. Too good according to many judges. As complaints of misconduct against judges soar, and the queue of backlogged complaints exceeds 3 years, judges in the incestuous NZ judicial community fear Commissioner Sir David Gascoigne will respond appropriately, maybe even publicly.

It was not only the severity and weight of judicial complaints which opened the Commissioner's eyes since taking over from former Commissioner "fixer" Ian Haynes of law firm Kensington Swan in July 2009, it is the virile targeting of anyone deemed to be critical of judges' conduct - combined with the judges' power to override the watchdog himself.

Shortly after taking office Mr Gascoigne fell out of grace for recommending the convening of a judicial conduct commission panel to investigate impropriety by former Supreme Court Justice Bill Wilson. While Gascoigne had little option due to the massive press coverage of events and retired Justice Sir Edmund Thomas personally supporting the complaint, the Judicial lobby apparently wants him out, in favour of a replacement along the line of another Haynes. Even for an insider like Sir David, who fully understood the insular nature of judicial appointments and the Commissioner's "unofficial role" to protect their flank, the High Court ruling of Justices John Wild, Graham Lang and Forrest Miller in October 2010 quashing the Commissioner's recommendation to investigate Wilson J's conduct was alarming.  If the Commissioner failed to get the message, a fine point was added by Wild J's immediate promotion to the Court of Appeal.

As Commissioner, Mr Gascoigne earns a small portion of what he earned as a senior partner of Minter Ellison. His dissatisfaction appears to extend beyond salary and the insufferable role of being at the mercy of powerful corrupt judges he at once has a statutory duty to expose and hold to account.

In a recent affidavit filed with the High Court, Gascoigne asserted funding is so tight that the Commissioner does not have an office and is forced to work out of the Wellington office of Minter Ellision. It is perhaps a symbolic reminder of his Clayton's role and that, like his colleagues, he will be back before the judges he is currently tasked with keeping honest - and possibly sooner than he  planned.

COURT TRANSCRIPTS TOO PRECIOUS TO SHARE WITH PARTIES

30 November 2011
In a twist on the old Benjamin Franklin saying "Three can keep a secret if two are dead", New Zealand Court of Appeal judges have implemented a policy that a hearing transcript is not to be provided to parties considering appealing to the Supreme Court unless the Supreme Court requires it be produced.  In turn, the Supreme Court rarely does so, having turned down at least five such requests this year alone.

This month Supreme Court Justice Peter Blanchard rejected a transcript request in a high profile Wellington trust dispute by Malcolm Rabson on the ground it could not be actioned before Rabson's appeal right expired the next day. Court of Appeal President Mark O'Regan had previously denied the request by stating "appeal options should be by reference to the Court's judgment, not what was said at the hearing".

Called "the truthful witness", transcripts have become the increasing bane of dishonest and inept judges in New Zealand. Complaints to the Office of the Judicial Conduct Commissioner regarding hearing conduct of Court of Appeal judges are reportedly up 400% in the last 4 years. Meanwhile, judicial bias appeals to the Supreme Court have virtually exploded since the success of South Island woolgrower Saxmere in exposing disgraced Supreme Court Justice Bill Wilson's conflict of interest with opposing counsel two years ago. 

After Justice Susan Glazebrook was caught on the record defending the practice of fraudulent invoicing from the bench in a 2008 appeal hearing, an embarassing recess was called to allow the Registrar to erase Her Honour's comments from the record. 

Something had to be done.

Because the Court of Appeal had fallen into custom of recording all appeal hearings, it was considered bad public relations to now stop recording, even though the High Court stopped recording proceedings ten years ago.  Former President William Young, working in conjunction with District Court Judge Roderick Joyce of the powerful Rules Committee, decided the Courts were faced with too many perception negatives to adopt a new rule which went against the projected appearance of transparency. The solution was decided to merely make transcripts inaccessible.

Today, litigation parties seeking a transcript are told their expressed need was not good enough or that the "cost of preparing the transcript" is not warranted - even when they have offered to pay for it.

Surprisingly, even the Judicial Conduct Commissioner has fallen into lockstep with this obstructive position.  Dr Frank Deliu filed a complaint with the JCC and was told by the current Commissioner David Gascoigne that he would not request the court transcript as part of his investigation because he did "not want to appear to be assisting" the complainant.

Mr Gascoigne's predecessor Ian Haynes had infamously stated in an earlier case that he would not avail a hearing transcript to support a complaint of judicial misconduct because the "official" transcript was by audiotape and his governing legislation only allowed him to access "written documents" in the investigation of judicial misconduct.

Meanwhile, judges have become so hostile to having their public duties recorded that early this year Court of Appeal Judge Robert Chambers set off a breach of counsel's duty of fidelity to the Court complaint to the Law Society because counsel in Orlov et al v Atty General took his own recording at the public appeal hearing. Chambers J was forced to relent when it was shown that counsel had duly informed the Registrar of his intent to record prior to the hearing. The Registrar has since been instructed to not approve such requests.

The Court of Appeal's aversion to revealing hearing transcripts to the litigation parties has filtered to orders over the lower courts, effectively expanding the practice. In a September 2011 ruling, Court of Appeal President O'Regan and Rhys Harrison J refused a request for a family court transcript by an applicant identified only as "AJF".  The applicant claimed the transcript would show the court-appointed lawyer for child was unsuitable and that a psychologist report ought to have been prepared. The judges' rational for refusing the request was that the transcript "will be irrelevant to that exercise".

RIP VAN WINKELMANN

28 October 2011
It is hard to imagine a judge more asleep at the switch than Helen Winkelmann (pictured). As the Chief High Court Judge who has accurately identified that courtrooms around New Zealand are sporting more cobwebs these days than litigants, one would think she might try to figure out what it is about the courts that seems to have provoked a broad allergic reaction among the public. Instead she is out to attack her 'competition' - as she sees it.

That competition, according to Winkelmann J, is those damn mediators and private arbitrators. They deprive the nation of the body of court precedent which guides commercial and civil law, and - hold your hats - are not as trustworthy as the courts.

In a recent speech to the Arbitrators' and Mediators' Institute of New Zealand, Winkelmann J tried to warm up the crowd by accepting that mediation "is a good thing", before immediately delving into her "four concerns". More than a few jaws dropped when she claimed that personal interests of the mediators, excessive durations of mediations which impact judgment, cost blow outs and resolutions determined by power imbalances were the bane of this alternative to her pet court option.

Was this not a case of the old girl projecting the ills of the courts upon her competition?

Media responses from the National Business Review to NZLawyer to Her Honour's gypsy tour suggest questionable judgment by the Chief Judge, not without, perhaps, a little pity for the old girl.

One obvious thorn is virtually everyone knows that decisions can take years to come out of the NZ courts. Winkelmann herself often takes six months to issue an interlocutory ruling. Even the World Justice Project survey run by Court of Appeal judge Anthony Randerson's brother could not ignore this reality, giving New Zealand low marks. It must therefore be demeaning for Winklemann J to have to obfuscate these realities in her effort to sell reasons to use the courts. The charade is perhaps reminiscent of President George Bush's sales pitch for going to war against Iraq.

Winkelmann J is also more junior than the five judges, other than Raynor Asher, who sit on commercial cases. She has repeatedly turned a blind eye to judicial indiscretions by senior judges under her authority, including conflicts of interest by Judith Potter and Geoffrey Venning JJ and the obvious inability to add accounts by Rodney Hansen J when ruling in favour of his mates.

There is also the broader question of who really wants to see the Chief High Court Judge busking on the street for business.

Though Her Honour has taken up the avocation of hawking courtroom services on the lecture circuit, her dissing of the competition has provoked unusual criticism of a judge in a country where the gospel states judges have no flaws. Barrister Nigel Dunlop, writing for NZLawyer, too politely responded that, contrary to the hapless Winkelmann's remarks, parties to mediation control both the process and the costs - in contrast to court proceedings.

As to power imbalances, it is absurd to advocate NZ courts as providing a more level playing field when money is such a driver that plaintiffs must put the defendant's projected legal costs into escrow before they can obtain a hearing and judges are so cloaked in immunity and self-importance they have no compunction deciding cases involving family and business partners without mere disclosure.

THE SCOURGE OF DEFAMATION

3 October 2011
Defamation has apparently become so bad in New Zealand that judges have implemented an "express lane" for the courts to deal with it. Presumptions of the court now generally rest with the plaintiffs (influential figures are almost exclusively the consumers of such claims) and judges often warn defendants at first appearance that their legal fate is by their own hands.

Where once defamation was the province of jury trials - by definition 'defamation' is the perception of the public at large - judges effectively eliminated this statutory right of a defendant as too lavish and slow over the last four years.

The mode of trial may be immaterial. Only a small fraction of NZ defamation claims go to a defended hearing. Most well-heeled plaintiffs win by force or default. Less-heeled defendants struggle with the huge cost of defence. Often they are debarred from defending themselves after their accuser racks up sufficient pre-trial costs awards such that the judge makes an order these must be paid to their accuser before they can appear at trial. Media organisations, on the other hand, almost always settle if the plaintiff has the financial resources to push the claim through the courts. Principles take a back seat to financial assessments which not surprisingly determine the cost of defending is often greater than paying off. Settlement, in turn, always contains a confidentiality agreement.

The ironic upshot is that either the plaintiff's unanswered allegations or vagueness and silence are the outcome in the majority of these civil proceedings which legally purport to challenge and define the truthfulness of public protestations.

It is also ironic that some of the most virulent defenders of the right to an unfettered reputation are judges who expressed legitimate concern for the potential of defamation abuse when practitioners. Court of Appeal Judge and current advocate of protecting public personas Rhys Harrison long ago put it in simple and sweet terms when he said "Defamation silences false speech, but it also silences true speech".

One consequence of the Courts increasing presumption that the unfettered reputations of influential people are truths which need protecting is that what passes as investigative journalism today in New Zealand are largely mundane exposés. Typical are reports on expense account overspending by Members of Parliament and corner dairies selling cigarettes to under age teenagers. Having made significant investments in stories of dodgy dealings by powerful people over the years, only to be thrown in the bin because of a lawyer's defamation threat, television and print media organisations are rarely prepared to embark down that path. It seems only when the person's crimes become so public and destructive that it results in a self-imposed crash and burn that the mainstream media feel it is safe to finally report their public persona did not reflect their true character.

Even when it later surfaces that a party who won a defamation award - without a hearing - was engaged in fraudulent conduct as a public official, the Police, government agencies, the courts and press intently look away, as if undoing the resultant injustice merely opens a mended wound.

Take the bizarre defamation case of Wells v Haden. Grace Haden is a former police prosecutor and current private investigator who has prosecuted and exposed corruption for 30 years. In July 2006, Barrister, prominent politico and academic on animal welfare Neil Wells filed a defamation claim against Haden after she posted an article on a website claiming Wells was running a sham charitable trust and diverting public funding and fines earmarked for Waitakere Animal Welfare Services through this (non-existent) trust to himself personally. To underscore the alleged fraud, Haden registered the trust name which Wells had been operating under.

Having the documents to support her publication, and as a former prosecutor accustomed to court procedures and rules of evidence, Haden thought she had nothing to fear. Wanting to save the cost of an attorney, she appeared for herself.

A frustrating year later, District Court Judge Mary Beth Sharp ordered Haden to pay Wells, within two weeks, $19,000 in interlocutory costs judgments before her defence to the defamation would be allowed. Judge Sharp warned the emotional Ms Haden that she had brought this upon herself. The Judge simultaneously directed Wells to file a new statement of claim.

Ms Haden failed to pay. In any case, Ms Haden knew she could lodge a defence to the new claim. But no new statement of claim was filed. When Wells attempted to bankrupt her over the $19,000, she paid $25,000 to settle. According to Haden, the case seemed otherwise to have faded away - until she received notice from the Court that a quantum of damages hearing had been set down before District Judge Roderick Joyce in March 2008. She appeared, only to find out later the hearing was confined to damages only. This meant the judge was assessing damages without any court finding her guilty first.

Though the judge allowed Ms Haden to submit evidence in mitigation of damages, his 93 page reserved judgment left no doubt he had been expecting an apology. The judgment characterised her evidence as "rehearsals" and berated Ms Haden for continuing her "extreme and outlandish allegations" in her affidavit filed in mitigation of damages. Mr Wells was awarded aggravated and exemplary damages of $57,500. The judge purported to conduct his own internet searches post-hearing to support his exemplary damages award.

Ms Haden paid $49,000 for a lawyer to appeal to the High Court. But the money ran out and Ms Haden appeared at the hearing. In a reserved judgment nine months later Rodney Hansen J expressed disquiet over Judge Joyce's trenchant judgment criticism of Haden, but concluded "no harm was done". Hansen J upheld Joyce's finding, dismissing the appeal grounds of truth and honest opinion on the basis Haden "was unable to contest the essential elements of the plaintiffs' claim - that there were defamatory statements published by the defendants - and she did not seek to retreat from them at the hearing".

The indefatigable Ms Haden continued to press Waitakere City Council and MAF for evidence to further prove her assertions. The result is that the trust she was found guilty of defamation for calling a "sham", but which Joyce J had labelled "an organisation in terms of a state of affairs where two or more persons have joined in a common purpose" was audited by MAF Assurance and Risk strategy performance group, resulting in the organisation seeking to give up its approved status and avoid further scandal in 2009.

Although the government officials were likely caught up in the scam unwittingly in initially granting Mr Well's fictional entity approved status, they have so far failed to act on the evidence against Mr Wells who, despite being shown to have used his council position to unlawfully divert public funds for private gain, continued to run the animal welfare services at Waitakere city until he resigned under pressure in December 2010.

While Mr Wells has so far made no effort to collect on his defamation award, Ms Haden can no longer afford the cost of attempting to clear her name in the courts.

CRISIS IN SUPREME COURT OVER OPERATION 8 APPEALS

29 August 2011
Despite the shroud of secrecy which has pervaded most of it, the four year prosecution of eighteen NZ citizens in what began as a terrorist dragnet in October 2007 has publicly taken on the appearance of a Chinese fire drill in the courts. The chaotic and protracted proceedings have, by public appearances, accomplished little that is tangible so far. Interlocutory court rulings have been all over the legal map. Two interlocutory judgments by Chief High Court Justice Helen Winkelmann have been appealed all the way up to, and agreed to be heard, by the NZ Supreme Court. Any trial, if at all, will not occur until at least February 2012.

The two appeals of High Court procedural judgments which the Supreme Court have agreed to hear so far concern the legality of the Police search warrants and the denial of the accused their statutory right to trial by jury.

The appeal against the search warrants was heard by the Supreme Court in early May and the decision is still awaited. The appeal hearing against the judge-alone mode of trial had been set for Tuesday of last week but was inexplicably adjourned until 14 September.

Kiwisfirst confirmed on Friday that the Supreme Court delayed hearing the second appeal because of the difficulties the bench is experiencing in reaching a reasoned decision on the search warrant appeal. Winkelmann J had declared 6 of the 9 land search warrants unlawful in September 2009 and the Court of Appeal subsequently overturned her ruling.

There is some consensus on the highest Court to the extent that, given the legally muddled procedural history, some cohesion in the highest court's ruling is required. But the strong and diverse opinions of the bench on the issue have reportedly created "intense debate" among the judges and already doubled the time of the expected ruling. The long awaited ruling is now anticipated to come out this week reversing the Court of Appeal decision.

These latest developments raise weighty problems for the prosecution and look set to change the complexion of the appeal against judge-alone trial. If the Supreme Court throws out some of the search warrants as expected, much of the prosecution's case is thrown out with it. Even if the remaining evidence is considered sufficient to go to trial, the trial is likely to be shorter, bolstering appeal arguments against one of Winkelmann J's two reasons for preventing jury trial (the trial is likely to be long).

Crown Law's damage control has been in active mode for months. Earlier this year, amid mounting public misgivings regarding the prudence of the prosecution, Crown Prosecutor Ross Burns reaffirmed his determination to take the matter to trial. In response to an Official Information Act request by kiwisfirst, Crown Law claimed implausibly to have spent less than $400,000 so far in prosecuting the 18 accused, in this case which comprises more than 60,000 pages of documents and has been the subject of multiple hearings and appeals over four years.

A small but unspecified number of the accused have already agreed to plea bargains according to Mr Burns. The rest are charged with weapons violations; five with participation in an organised gang.

DISREGARD FOR BASIC LAW BREEDS BROAD JUDICIAL DISCRETION

21 August 2011
In December of last year, Chief High Court Justice Helen Winkelmann issued a secret order denying the 18 accused in the Operation 8 prosecutions their statutory right to trial by jury. Mere publication of this fact brought threats of contempt against the National Business Review and this website, although a quick realisation the judge gave no reason for such secrecy, and had no lawful reason, resulted in a revision allowing disclosure of the judgment effect, but still suppressed her reasons for contravening the statutory right. The reasons included the Judge's opinion that Kiwis juries are too thick to be counted on to make the right decision.

Kiwisfirst publisher Vince Siemer was prosecuted in a show trial by the Solicitor General in early June after Siemer refused to remove the judgment from this site on the basis the judge had no power in law to suppress a criminal judgment.  Indeed, the judge had not attempted to give any reasons, as the law minimally required.

The Solicitor General's prosecution failed to assert what, if any, harm the publication of Winkelmann's order denying trial by jury created. He still sought the maximum term of 3 months imprisonment against the kiwisfirst publisher.

In a reserved decision dated 4 July 2011, Justices Simon France and Alan McKenzie (pictured) found the publisher guilty of contempt. Their judgment declared even unlawful orders must be obeyed until such time they are challenged and overturned, adding it is open to Mr Siemer and any one else affected by the order to challenge it in court.

This proved to be a false judicial claim according to a 26 July 2011 judgment by Auckland High Court Judge Timothy Brewer, who last month threw out an application by public watchdog Penelope Bright seeking to quash Winkelmann J's suppression order on grounds it was an unlawful order. In dismissing the application, Brewer J claimed Ms Bright had no standing in the court. While Ms Bright's rights are adversely affected by the order, she is not a party to the Operation 8 prosecutions.

Once again the NZ Judges have relegated the New Zealand Bill of Rights Act 1990 to the judicial loo, showing it to be a piece of legislation comparable to the North Korea Constitution which guarantees its citizens the right to political assembly and freedom of expression.

Ms Bright plans to file an appeal this week with the Court of Appeal, challenging Brewer J's dismissal as legally incompatible with France and McKenzie JJ's judgment which professed anyone affected by the order can challenge it.

Meanwhile, Mr Siemer's counsel Tony Ellis filed an application for arrest of judgment, noting the Court failed to follow the required summary legal process.  Last Friday McKenzie J apparently ignored this application when directing by Memorandum that Siemer be brought before the Wellington High Court on 2 September 2011 for sentencing. 

Pertinently, a Wikileaks post purports to show the NZ Police notified the U.S. Embassy in late 2007 that none of the 18 accused, originally labelled as 'terrorists', were likely to face custodial sentences.

If the Solicitor General's application for 3 months imprisonment is accepted by the Court, Siemer may be the only one involved in this sordid chapter of New Zealand secret court justice to go to prison - ironically, for nothing more than his accurate reporting that a judge secretly denied 18 New Zealand citizens their statutory right to trial by jury.

WORLD JUSTICE PROJECT CONCEDES ROOM FOR SURVEY IMPROVEMENT AFTER NEW ZEALAND'S HIGH RATING

8 August 2011
New Zealand's first year participation in the World Justice Project's annual survey has disclosed concerns for the organisation's "Rule of Law Index" after New Zealand gave itself high marks in lack of corruption.

WJP Senior Economist Alejandro Ponce (pictured), speaking from Washington D.C., conceded that countries which fail to look for corruption, or conceal it, could rate higher in its current questionnaire than less-corrupt countries where corruption is publicly weeded out. Mr Ponce stated the non-profit WJP is currently considering ways to reduce this survey perception bias, adding this is a priority before next year's survey.

Sixty six countries are currently included in the worldwide survey, which is promoted as providing "a comprehensive picture of the extent to which countries adhere to the rule of law in practice". The survey is the result of extensive consultation at international forums and focuses on whether the following four principles are adhered to:

1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

CIVIL COURTS DEEMED TOO RISKY

4 July 2011
Auckland Law Lecturer Scott Optican deadpanned in 2006 that the civil courts have nothing to do with justice.  While expressing the opinion that New Zealand was "not a banana republic", he said back then "it is all about money".

Seems this 'cost' of what New Zealand civil courts have been dispensing in place of justice is finally catching up with it.   Fairfax Media reported last week that civil litigation is down 71% in little over a decade - there were just 997 new defended civil cases taken in the district courts last fiscal year, compared to nearly 3500 in the 1998/99 year.

Far fewer cases get through to a hearing.  Auckland barrister Anthony Grant sought figures under an Official Information Act request last year and wasnotified there were just 248 defended civil hearings from January 2010 to October 2010 - little more than one case a day for the whole of New Zealand. 

As reported last month by kiwisfirst (see left hand column), Mr Grant has recently advocated augmenting legal skill deficiencies on the appellate benches by tapping foreign judges to sit on New Zealand cases.

Lawyers are increasingly vocalizing their discontent with the quality (or lack thereof) of judicial skills and appointments, as businesses and the public at large avoid the courts as if they were plague-ridden.  

Despite increased incidences of company collapses, defaults, dodgy dealings and fraud, New Zealanders are seeking court redress far less. 

New court rules and "reforms" implemented last year have had a further devastating effect which has yet to be reflected in the numbers.  For instance, it is now easier for a judge to use his or her discretion to limit legal proceedings and new rules require civil plaintiffs put up, in advance, the defendants' projected legal costs before their claim will be allowed a hearing.  At the same time, access to legal aid has been severely curtailed for civil cases. 
Combined with the poor quality of legal representation and judicial decisions, civil lawsuits are simply considered too risky and too costly to be pursued.  Moreover, only the wealthiest New Zealanders can afford to launch litigation when the regime requires plaintiffs to deposit the opposing sides' anticipated legal costs into court - in addition to funding their own legal costs - as a condition of obtaining a hearing.

Recent Department of Justice figures confirm this sustained decline in civil cases.  In the nine months of the latest financial year to May, there were 572 new civil defended cases; a trend which could result in a total of just 763 for the year.

Attorney General Chris Finlayson has reportedly expressed concern about the exodus of civil litigants, explaining time spent on reforms to the criminal justice system meant the government had been unable to consider fixing the civil system to provide improved access to quality, efficient and cost-effective justice.   It would be fine if this were true.  Unfortunately, many of the rule and legislative changes which now undermine long-established natural justice and access principles of court justice have come under Mr Finlayson's watch.

According to Fairfax, on the issue of stemming the decline, Finlayson stated, "There has been some talk about a commercial court. It is not a government policy yet because the government has not looked at it, but I am very much in favour of that kind of arrangement."  Again, as reported on kiwisfirst last month, Fiddling Finlayson has been saying this as the courts burned for three years.  However, the problem of "not looking at it" for three years may not be Finlayson. 

Prime Minister John Key considers any move to improve the quality of judicial decisions by setting up specialized courts may be viewed by foreign investors as confirmation by the government of the poor commercial decision making which currently pervades New Zealand's courts.  What Mr Key needs to come to grips with is that this message has already sailed to foreign shores.  It is dire time for the government to address it openly and honestly as the first step in fixing it.

DISHONOUR PROVED

12 June 2011
Judge Michael Lance QC (pictured) is claiming "complete vindication" after his mate, Judge Kevin Phillips, granted him $8,000 costs against the Police last week. This follows the failed prosecution last year of former deputy commissioner of the police complaints authority Lance for wilful damage in scratching a Volkswagon with his keys. The car had partially blocked Lance's driveway in Brown's Bay, Auckland. Three eyewitnesses to the incident came forth.

District Court Judge Phillips criticised the Police for not properly investigating before laying the charge, stating the charges against the once-powerful Judge Lance might not have been laid if they had.

Kiwisfirst broke the story of the Police investigation of Judge Lance in April 2009, a month after the incident.

The two day trial, conducted in the Auckland North Shore District Court in March of 2010, resulted in an acquittal by Judge Phillips immediately after closing submissions were made. The defence included a bevy of lawyers and experts led by formidable criminal defence barrister John Haigh QC. With the help of large displays and private investigator reports, the defence laid siege to the prosecution eyewitnesses, chastising them for claiming they did not recall a cabbage tree trunk which the defence asserted was positioned to block the witnesses' view from the outside café where they were dining.

The Police were prohibited from introducing into evidence their previous investigations of Lance keying at least one other car in front of his residence. Since the latest incident, "No Parking" has been painted in bright yellow on the roadside.

Judge Lance could have simply counted his blessings he escaped conviction, but that is not his style. In 2002, Lance sued Radio Pacific for defamation after a talk show host criticised as "idiotic" one of Judge Lance's decisions to dismiss a case of domestic violence on the grounds the abuse was "human and understandable". He settled the suit for a reported $40,000. A few years earlier, Lance travelled down to Rotorua to preside over a criminal prosecution of his son's legal partner for attempting to pervert the course of justice. The lawyer was acquitted and granted permanent name suppression in the judge-alone trial, despite a taped phone conversation of him attempting to blackmail the lead investigator into dropping drug charges against his client.

When the police later uncovered the Judge's relationship with the accused and sought then-Solicitor General (now Supreme Court Judge) John McGrath's help in holding Lance accountable, McGrath refused to prosecute Lance, claiming it was not in the public interest. McGrath then directed the file be sealed. Though the SG thusly concealed his unlawful conduct, Lance retaliated by viciously attacking the Rotorua police hierarchy for years afterward.

Former Solicitor General McGrath's complicity in covering up Lance's conduct undoubtedly encouraged Lance's subsequent offending and vengeful arrogance. With this pattern of conduct, it is significant that no judge since then had attempted to rein Lance in. Even today, they are content to allow vilification of the Police, the eyewitnesses and the owner of the car (who, it was asserted, may not have noticed his car was "keyed" on three sides before parking it), and Lance to tap into the public treasury, to maintain the myth that Lance is honourable.

McGrath's stealth and efficiency in concealing criminal conduct by NZ judges resulted in his own appointment to the Court of Appeal bench in 2000.