16 July 2012
The inbred nature of New Zealand judicial appointments has been satirized into cult vernacular on the website
Uncylopedia. The term "gendall" - the surname of NZ brother jurists
David - is
defined on the site as "organisms infecting the humanoid sub species of Judex Corruptus".
Uncyclopedia was launched as a parody of
Wikipedia in 2005. In contrast to Wikipedia, Uncyclopedia puts no value on accuracy but, rather, an overwhelming emphasis on humour. Entries deemed not funny enough are removed by editorial staff.
In addition to parlaying on the incestuous nature of NZ judicial appointments and an affinity for sheep, the 'gendall' entry has numerous photos, including the photo of Warrick Gendall sleeping on the bench. A note on the bottom states the page will be evaluated next on 21 July.
JUSTICE BLANCHARD'S PARTING SHOTS
29 June 2012
In his last sitting of the New Zealand Supreme
Court earlier this month,
Justice Peter Blanchard used the opportunity to expound his personal views that vexatious litigants and recall applications needed to be stopped.
The comments were made from the bench but, when one lawyer requested a copy of the transcript, a curt reply from the Court declared Blanchard J was refusing to release it.
These dark meanderings of a once-brilliant conveyancing lawyer foreshadow a disturbing trend of NZ judges dictating often draconian policy from the bench. It is not simply Blanchard J's lack of discretion upon retiring which provides a wake up call to the law-abiding public. Lawyers who attended the display cringed at the comments, knowing it was Justice Blanchard's obscuring of the financial indebtedness of his former colleague
Justice Bill Wilson to appearing counsel in "Woolgate" which required premier wool exporter Saxmere to file a (successful)
second recall to the Supreme Court of a single appeal.
But apparently, even an old dog can learn new tricks. In refusing to release the transcript, Blanchard J was obviously mindful that it was his comments caught in the first (unsuccessful) Saxmere recall hearing transcript that both embarrassed him personally and required the unprecedented second recall to New Zealand's highest court.
In a country where judges are not accountable to anyone, it was a fitting departure for Blanchard J to take a perverse swipe at the messengers which expose a dysfunctional and often wayward Supreme Court.
But the arrogance of Blanchard J cursing the honest litigants who persevere - while seeking to encourage government policy changes to stop them - was sadly unnecessary. Few seekers of justice can afford the millions of dollars Saxmere spent in multiple trips to the Supreme Court, inadvertently demonstrating it is merely the tip of the iceberg which is poised to sink New Zealand that Blanchard has blown some fog over.
FRAUD HIDDEN BY SUPREME COURT JUDGMENT
15 June 2012
In our continuing series exposing how Supreme Court judgments often do not accurately reflect the facts and law before the court,
Currie v Queen provides insight of how evidence of fraud is avoided when a powerful [profession suppressed by court order] and Police are the culprits.
READ FULL STORY
JUDGE ASHER SHOWS HIS LOVE
26 May 2012
F A Hayek famously wrote that the road to totalitarianism is paved by the inability of citizens to get before competent, determined and independent judges.
A worrisome example of this trend in New Zealand came down in a judgment of High Court Justice
Asher (pictured) this month in the
DuClaire v Palmer civil case.
Lysette DuClaire was an Inland Revenue solicitor who was allegedly victimised and railroaded out of a job by Deputy Solicitor General Matthew Palmer because he was upset she did not adopt Crown Law's advice to keep certain documents secret in a tax case.
Matthew Palmer is also the son of Sir Geoffrey Palmer.
Apparently back when she filed her case against Palmer in 2010, Ms DuClaire did not have court experience to know that law and facts never get in the way of a good NZ court judgment. She has now had a baptism by fire.
62-page Judgment, Asher J dismissed all four causes of actions and spun the tale in such a way that obstruction of discovery, professional intrigue and ex-parte meetings with a judge by Palmer appear to be necessities without which justice could not have been done.
Perhaps most telling was the gratuitous treatment Asher J personally gave Mr Palmer in the Judgment. In a glowing endorsement reminiscent of a professional commendation, Asher J had this to say:
" Dr Palmer was cross-examined at length before me. I had an opportunity to view his demeanour and his reaction to provocative propositions put to him by Miss du Claire. Dr Palmer clearly takes his responsibilities as Deputy Solicitor General most seriously. He does not appear to me to be a person who is prone to emotional responses or bears grudges. He seeks to do his duty to the best of his ability and expects others with whom he has a professional association to do the same."
Unfortunately, we will likely never know whether the Judge had a prior opinion of this defendant, was bribed or is clairvoyant.
Partisanship New Zealand's Latest Export
11 May 2012
The blindspot that Kiwis have regarding ex-parte and otherwise cosy relationships between judges and litigation parties appears to have created a cultural entitlement among the domestic-bred black robe wearers. The case of Dame Silvia Cartwright now suggests a certain haughtiness which will not be bridled by international legal norms - or even an appellate court ruling.
Dame Silvia Cartwright (pictured) is one of two
international judges presiding over the Khmer Rouge trials currently on show in Cambodia. In November of last year the defence filed an urgent motion to have the Dame Judge disqualified for ex-parte communications with co-prosecutor Andrew Cayley. Before the motion was made, Cartwright - the former Governor General of New Zealand - refused to reveal what was discussed at her meetings with the prosecutor on grounds judges need not engage in discussions over their conduct.
In December the Extraordinary Chambers of the Court of Cambodia ruled that there was no proof of inappropriate discussions and dismissed the defence application. On appeal, the Supreme Court reached the same finding. Despite the lack of evidence as to what was discussed, the Supreme Court's
17 April 2012 ruling declared that such ex-parte communications
"create the appearance of asymmetrical access enjoyed by the prosecutor to the trial judge" and for that reason alone should cease.
Dame Cartwright was oblivious to exacerbating her poor judgment, if not downright smug, telling a
"the defence are putting more emphasis on disruption than representing their clients". She was also undeterred, audaciously sending an email to prosecutor Cayley the day after the Cambodian Supreme Court ruling. Under the subject "draft transcript of hearing on the substance in Case 002"
the email stated simply
"Of course I was only trying to see the lighter side. As you know Andrew, I am seriously considering my own position. I shall not make a hasty ydecision (sic). Silvia". The Judge apparently made the mistake of hitting the 'reply to all' button.
If by this communication Cartwright was suggesting she might resign as Swiss-judge Laurent Kasper-Ansermet did in March, her latest actions may provide the tipping point. Two of the four defence counsel have renewed their application for her disqualification and the other two are in agreement. If the Cambodians cannot ultimately understand and accept that this is how justice is done in New Zealand and Hazzard County, she will simply come back to the land of milk and honey where her partisanship is appreciated - and where, thank God, judges have the power to direct Law Society investigations against lawyers who have the nerve to raise the allegation of judicial bias.
26 April 2012
The recent criminal convictions of former NZ Justice Ministers Sir Douglas Graham and William Jeffries for making false financial statements in a prospectus to Lombard Finance potential investors has chinked the armour of New Zealand's non-official position that public monies need not be spent rooting out corruption because it does not exist. It has also begun the public journey toward enlightenment that judicial exemption from NZ law on the basis laws threaten judicial independence to act justly presupposes the noblest of attributes rarely seen in even Justice Ministers.
During the three month trial, defendants and
reporters walked daily through the entrance which prominently proclaimed in brushed alloy that the Wellington High Court venue was dedicated by the "Honourable" Minister D.A.M. Graham in 1993. The brazen irony prompted chuckles and chagrin, as well as a debate which is rare in New Zealand concerning the other, and much less-known, "honourable" men and women who conduct State business in this building.
To a legal community virtually immune to poor and partisan judicial appointments, Attorney General Chris Finlayson's appointment of
David Collins as a Justice in this Court the same week as the former Ministers' convictions was more revolting for its audaciousness than it was surprising. Still, because it had been an open secret Mr Collins had engaged in criminal offending over many years, it initially appeared conditions for a perfect storm of outrage might develop. Finlayson's gamble appeared intent on sending a strong message that the State propaganda machine would play offence against any media or opportunistic lawyers by appointing one the worst offenders to the bench at this trying time. Now, with the benefit of hindsight, the move appears to have worked, although Collins' appointment did prompt media criticism previously unseen in New Zealand.
While both Graham and Jeffries had long retired from government prior to their criminal conduct, their personal endorsement of the prospectus prior to the company's April 2008 receivership no doubt soothed investment reservations of many pensioners who believed the propaganda that breach of the public trust was not culturally possible here.
Some $10 million was invested in Lombard Finance on the strength of its fictional representations of financial health and investment securitization. Its collapse left 4,400 investors owed $127 million. For their roles, each man was ordered to pay $100,000 reparations; Graham was sentenced to 300 hours community service and Jeffries ordered to 400 hours.
Both Graham and Jeffries have appealed conviction and sentence on the grounds High Court Justice Robert Dobson operated on an error in law in finding them guilty, a calculated gamble which could result in greater sentences if their appeals prove unsuccessful. Each adheres to the previously-successful "Sir Bob Jones insider trading defence" that ignorance of their actions and the law is sufficient to absolve guilt.
Whatever happens next in this affair will likely command no more than a footnote to the men's fate. The real cost will invariably lie in the already-lost millions in defence legal fees, parliamentary perks and reputations. For the New Zealand public, however, there is still hope for a positive legacy. The visible reminder to those who continue to enter the Wellington High Court of Sir Graham's honourable dedication may eventually induce demand for transparency and legal accountability of the men and women inside who we know less about yet strangely trust more.
"TEN PLUS FIVE" EQUALS 21 DAYS in PRISON
28 March 2012
Northland resident Myles de Montalk's 21 day prison sentence for contempt after District Court Judge John McDonald took offence to his submissions was reduced by High Court
Justice Graham Lang to 7 days on appeal last week.
De Montalk, who was seeking a defended hearing in the Whangarei District Court on 1 December 2011 to a reckless driving charge, was thrown in prison for 21 days when the Judge - repeatedly confused by de Montalk's reference to "paragraph fifteen" of a previous judgment - believed his lack of comprehension was being belittled when de Montalk replied on the third request "ten plus five". The transcript revealed that when the Judge asked
"Is that how you're always going to talk to a Judge?", de Montalk replied
"It depends Your Honour, if they hear me or not."
In pronouncing sentence, Judge McDonald concluded:
"I find that his comment, "10 plus five," was calculated by him to show his utter disrespect for the Court. He has sought to explain that comment today as a way of explaining to me what the number 15 means. I do not accept that for one minute."
Earlier in the appearance, de Montalk became upset by the Judge's dismissive refusal to address Police challenge to a summons of a police witness despite this issue being on the court agenda that day. When de Montalk expressed his desire for the police notes taken from witnesses, the judge made comment that just because the police were there does not mean they took notes. When de Montalk referred the Judge to police evidence of their existence only to get the same reply, de Montalk responded,
"Yes Your Honour, just as what Judges say in Court's not true."
Though this earlier exchange, which resulted in a prompt warning from the Judge, was referenced as setting the tone for the ultimate contempt, Lang's judgment was evasive of the judge's conduct which prompted the earlier exchange, stating,
"I accept that there could have been fuller discussion of the issue given that the Registry had advised Mr de Montalk that it was to be heard on that day. Nevertheless, the fact that it was not resolved does not assume any practical significance in the context of the principal issues that this Court is dealing with on the appeal."
In the storybook fiction of New Zealand court lore, Lang J declared de Montalk's appeal unsuccessful by stating,
"RESULT - Although I have upheld Mr de Montalk's submission that the sentence was clearly excessive, this does not result in the appeal being allowed. Mr de Montalk only spent six nights in custody before being released. As a consequence, I am satisfied that he ultimately served a sentence that was actually slightly less than was appropriate having regard to his conduct. For that reason the appeal is dismissed."
COMPLAINTS REVIEW OFFICER UNDER FIRE
15 March 2012
Perhaps it is another example of bureaucratic incompetency, or perhaps it is a curse of the position. Just two years after the first Legal Complaints Review Officer Duncan Webb hastily resigned amid allegations of rampant partisanship and incompetency, his successor, Hanneke Bouchier, is under pressure to resign after four successful judicial reviews over 13 months found fundamental flaws in her decision making processes.
The positions of LCRO and deputy LCRO were created by the
Lawyers and Conveyancers Act 2006 to replace the Lay Observer as independent oversight to decisions of lawyer complaints to the
New Zealand Law Society.
The pair handle less than a hundred appeals of Law Society decisions per year.
As with the now-defunct Lay Observer, appointees were required to "not be lawyers" so as to instil an appearance of oversight independence from the legal fraternity. The initial appointment of law professor Webb as LCRO and Office of the Ombudsmen legal investigator Hanneke Bouchier as his deputy required both of these lawyers to "declare" they were no longer lawyers.
Part of Webb's downfall came about because he still practiced as a lawyer. It was also disclosed that he resigned from the Law Society Complaints Committee in order to become "independent overseer" of their decisions as LCRO. When multiple complaints Webb was practicing law without a licence were made to the Law Society he oversighted, the Society announced that - in contrast to their charter of powers over former lawyers - they could not investigate Webb's actions because he was not a lawyer.
In any event, Webb's deputy Bouchier was appointed interim LCRO after Webb's quick exit in January 2010. Her appointment was formalised that July. Since then her actions have been sliced and diced through the courts - experiences which must minimally be foreign to a legal investigator for the omnipotent Office of the Ombudsmen. One affected lawyer, Dr Frank Deliu, has made it publicly known that he has targeted Ms Bouchier for removal as incompetent. He claims the successful judicial reviews tell only part of the story; that he has evidence she perverted justice by misrepresenting evidence of lawyer wrongdoing, something typically outside the purview of judicial reviews.
Despite the adverse rulings, no one in New Zealand who understands the judicial pedigree of the Bouchier name is counting her out. One needs to look no further than Duncan Webb, back practicing law as a partner of Lane Neave and advertising his services every week in
21 February 2012
Since the loss of the Privy Council, the NZ Supreme
Court has institutionalised the same slapdash legal express lane that the dear Law Lords determined in 2003 (R v Taito) to be a widespread unlawful practice in New Zealand.
The latest proof of this is a dismissal of a stay application which Justice
Andrew Tipping (pictured)
ruled yesterday was "not in the interests of justice" to grant.
The lack of legal reasons for the order has caused the appellant to file a
complaint to the
Judicial Conduct Commissioner against Tipping J, who retires from the bench in June. The complaint is almost certain to be delayed until Tipping retires and then dismissed on the basis he is no longer a judge.
The appellant sent
kiwisfirst a copy of Justice Tipping's 'Minute' dismissing the stay after noting the document footnote purports to originate from an unrelated appeal brought by
kiwisfirst publisher Vince Siemer last year.
The Supreme Court Act 2003 requires judges to give reasons for their decisions, but the current bench routinely rely upon the allowance to state reasons "broadly" to avoid giving reasons specific to the applications.
It now appears the highest court is too busy and streamlined in its approach toward dismissing applications to bother with reasons or even original wording.
NZ COURTS STILL SECRET BUT CORRUPTION LESS ACCEPTED
16 January 2012
In a High Court
ruling which hopefully signals a trend away from protecting powerful lawyers engaged in criminal enterprises, Justice
Timothy Brewer recently dismissed a civil "judicial review" application which sought to have a search warrant executed against a NZ law firm declared unlawful.
A principal of the law firm was identified early last year by the United Kingdom Serious Fraud Office as having a
"longstanding association" with criminal conspirators
"as an advisor, an advocate and intermediary with independent banks, civil litigator and a representative of those alleged to be involved in the conspiracy". The search warrant was executed in tandem with a search warrant in Australia.
In keeping with the covert custom of the NZ courts, the law firm cannot be named. The case was listed on the High Court docket as
A v District Court and a bold six-line heading on the judgment punctuated the anonymity order. A heavily relied upon judgment in a previous case of lawyer conspiracy was equally obscured - referred to as "A Firm of Solicitors" ruling.
The firm's lawyer Julian Miles QC had argued a search warrant was unlawful and excessive and that, instead, the firm ought to have been served a compulsory notice to produce the documents sought. He stated legal privilege had been compromised by the consequent seizures and sought the fruits of the search warrant to be declared unusable.
In seeking the search warrant from the Attorney General under the Mutual Assistance in Criminal Matters Act 1992, the UK SFO stated there existed
"a real risk that [censored] would not fully comply with a compulsory notice". The search was only of [censored's] law office, as the UK SFO conceded too much time had elapsed to perhaps support a warrant for his residence. A compulsory notice to produce was additionally served to encompass documents keep off premises.
While the judge was not inclined to shed the cloak of secrecy which routinely infects the NZ courts, he was prepared to apply the law to the case. In this instance, he dismissed "A"s application as an inappropriate challenge of the District Court's jurisdiction in granting the search warrant and the Attorney General's role in fronting it. While accepting a judicial review may be appropriate in the case of a "fundamental defect" of process, Brewer J stated the civil application is inappropriate as a mechanism to adjudicate the strength of a possible criminal case against a target of the search warrant.
FRAUDER IN THE COURT
6 December 2011
The New Zealand Supreme Court is again in the spotlight for the wrong reasons, after misrepresenting a judgment and then issuing a "
press release" promoting the false factual and legal position.
The Supreme Court Judgment in
Siemer v Heron was released amid fanfare on 8 November 2011 as a "unanimous dismissal" of the appeal against a Court of Appeal judgment which declared no direct right of appeal existed to a judge's order imposing security for costs.
However, in point of fact the Judgment ruled in favour of the direct right of appeal, which was the only approved ground, with the majority deciding in a 4 to 1 split to overturn the Court of Appeal and, with it, the earlier decision of perennial High Court blunderer
Geoffrey Venning J.
The defendant Michael Heron is the son of deceased High Court Justice Dick Heron and is himself a lawyer with Russell McVeagh.
The appellant Vince Siemer is the publisher of Spartan News Limited and this website.
The claim stems from an alleged assault by Heron at a 2007 Vector shareholder meeting in Auckland but proceedings have been on hold because Siemer has not paid $22,000 in security for costs judges have required of him before a hearing will be set in the district court.
After the public misrepresentation of the judgment by the Supreme Court, Heron's lawyers applied to New Zealand's highest court for a $15,841 costs judgment against Siemer, stating "The respondents were the successful parties to the appeal".
recall application against the judgment and press release has been filed with the Supreme Court. A judicial misconduct
complaint has also been filed with the Office of the Judicial Conduct Commissioner against the five permanent judges of the Supreme Court who signed off on the alleged deception.
DÉJÀ VU ALL OVER AGAIN
22 November 2011
One of the most unsettling days in New Zealand jurisprudence must be when the Privy Council determined in the 2003
Taito appeal that New Zealand Court of Appeal judges (the nation's highest court at the time) had been systematically denying due process rights to appellants by preventing appeals. Demonstrating the value of that unique blend of cultural apathy and loyalty in the wake of the scandal, New Zealanders virtually woke up one day to find the British messenger had been shot, the NZ judges found breaking the law were promoted to the newly formed Supreme Court and an $80 million palace was built at taxpayer expense in their honour.
To prove things could get worse,
Bill Wilson was soon promoted to the bench, only to resign in disgrace over ruling in undisclosed conflicts of interest in favour of his bank, who he owed $1M on floating terms, and then his business partner to whom he owed money. His handsome annual payout to keep quiet about his fellow judges was followed by one of New Zealand's most notorious lawyers,
William Young, being appointed in his place. The sting that he was perhaps the most honest judge on the Supreme Court has never left Wilson.
It should come as no surprise then that the unlawful practices held so dear by the more honourable of this gang when their oath of office was fresh in their mind back in 2003 would become institutionalized soon after those pesky law lords of the Privy Council had been banished. And, as it was the court record that exposed the previous unlawful actions, it only follows the judges learned their lesson sufficient to keep their unlawful actions "off the books" today.
When it was recently exposed that the Court of Appeal admitted a "favoured son" had concocted evidence to support a ruling - at the same time the Court inexplicably refused to correct the recognised injustice - the partisan Supreme Court could only scratch their heads to say
"It is not clear to us what (
Justice Cooper) intended to convey" before it too dismissed the appeal of that ruling without hearing.
When a judgment recall was filed challenging the Supreme Court dismissal on grounds it was irrelevant what the judge was trying to convey, but the resultant fraud was relevant, the Supreme Court issued a recall judgment which stated
"It would not be right to re-open the application for leave to appeal to allow (the appellant) to advance an implausible argument which, if it were to be made at all, could and should have been advanced in his original submissions."
When proof was provided in a second application for recall that this excuse for not considering evidence of fraud was "patently false in fact",
Blanchard JJ purported to "dismiss" the application and conceal the evidence without providing the requisite judgment or legal reasons.
The result below and
here provides a glimpse into the unlawful and clandestine way NZ Supreme Court judges routinely act in their public role.
WHEN THE LAW IS NOT THE LAW
12 October 2011
86 page ruling in
Attorney General v Chapman, a majority of the Supreme Court last month declared acts by judicial officers are exempt from New Zealand Bill of Rights Act 1990 enforcement or remedies.
Mervyn Chapman had sued the Attorney General for $400,000 under ss 25 and 27 of the Bill of Rights Act after the 2002 Privy Council determination in
Taito v R that New Zealand Judges were guilty of systematic due process abuses in dismissing appeals as quickly as they were filed. Chapman was one of many New Zealanders who had his appeal dismissed ex parte by the Court of Appeal at the time. His conviction was later overturned after the Privy Council ruling temporarily compelled the Court of Appeal to properly revisit the appeals adversely affected.
The Attorney General appealed to the Supreme Court after the Court of Appeal ruled in 2009 that Chapman could sue the government for damages under the Bill of Rights Act for breach of his rights by judicial officers.
Supreme Court Justices
Andrew Tipping and
Peter Blanchard disqualified themselves from sitting on the appeal, having participated in the due process violations exposed by the Taito ruling when sitting Court of Appeal judges.
John McGrath and
William Young joined retired Court of Appeal President Thomas Gault to form the majority.
Gault J's view was never in doubt, having consistently ruled in his career that judge-created absolute judicial immunity could not be challenged by statute, precedent or international convention.
Sian Elias and retired Justice
Noel Anderson dissented, stating available legal remedy where a legal right exists is fundamental to the rule of law and does not conflict with judicial independence (immunity).
McGrath and Young JJ did not retreat from the abuse, conceding
"We accept that when the Court of Appeal dismissed Mr Chapman's conviction appeal under the pre-Taito ex parte procedure, it breached Mr Chapman's rights to an appeal and to natural justice under ss 25(h) and 27(1) of the New Zealand Bill of Rights Act 1990." They also acknowledged that
Simpson v Attorney-General [Baigent's case]  and
Auckland Unemployed Workers' Rights Centre v Attorney-General  3 NZLR 720 had
"relevantly settled the law in New Zealand" that public law compensation was available to victims whose rights have been violated by judicial conduct.
But the judges said such law can no longer stand, as it undermined common law principles of absolute judicial immunity which the judges claimed was needed to act without fear or favour.
To temper if not justify their ruling exempting judges from the law, McGrath and Young JJ boldly stated that the new Supreme Court regime made correction of judicial injustices more likely than under the Privy Council and further declared the Office of the Judicial Conduct Commissioner provided a remedy to victims of judicial misconduct which was not available at the time Mr Chapman was denied his due process rights.
Alleged violations of due process by the Supreme Court have resulted in a minor explosion of Bill of Rights claims in the last couple years. Meanwhile, the Office of the Judicial Conduct Commissioner has received over 700 complaints of judicial misconduct, compelling amendment to the legislation to allow appointment of a deputy commissioner and additional funding to handle the influx. A small handful of these complaints have been furtively referred to the Head of Bench, with no apparent outcome. Only one complaint so far has resulted in recommendation of an investigative panel (against former Supreme Court Justice
Bill Wilson in 2010) but this recommendation was subsequently quashed by court order.
The decision has been met with resigned acceptance by the legal fraternity and very little has been published in the media.
TRANSPARENT AS A BRICK WALL
29 September 2011
In the wake of the recent Supreme Court ruling that Police search warrants in the October 2007 'terror raids' were unlawful, the government has moved under urgency to pass the
Video Camera Surveillance (Temporary Measures) Bill to increase its surveillance powers.
The brief window for public submissions closed last night. Yet attempts to make submissions via the link on the Parliamentary website were rejected, with the message
"Alert. www,parliament.nz uses an invalid security certificate. the certificate is not trusted because no issuer chain was provided. (error code: sec_error_unknown_issuer)"
JUDGE SIMON SAYS, "GO TO PRISON"
3 September 2011
Simon France and
MacKenzie created a new category for imprisonment in New Zealand yesterday - media publishers who deliberately breach court suppression orders, where the court
concedes the breach caused no prejudice or harm.
In ordering Spartan News Limited publisher Vince Siemer to six weeks prison, a full bench in the Wellington High Court stated that while the Crown "does not contend the breach has had consequences", "the public and deliberate breach of Winkelmann J's suppression order" warrants imprisonment, in the words of the Crown prosecutor, "to send a message to the public" that court orders must be obeyed.
The judges then stayed their sentencing order for two weeks to allow defence counsel Tony Ellis to appeal to the Court of Appeal.
The imprisonment order is a result of
kiwisfirst reporting in December 2010 that Chief High Court
Judge Helen Winkelmann denied the 18 Operation 8 defendants their statutory right to trial by jury on grounds the trial is likely to be long and jurors would likely use "improper reasoning processes" in reaching a verdict (oops).
Winkelmann J gave no reasons why her judgment in a criminal proceeding was suppressed. France and MacKenzie JJ corrected this oversight in convicting Siemer for contempt, stating the reason for suppression was "self evidently" to protect fair trial rights of the accused.
The Crown had provided no evidence this was the case, and conceded at sentencing that no prejudice resulted from the breach. The only evidence in the hearing was from Siemer and one of the accused who stated the reporting was not considered to jeopardise his fair trial rights.
In a judicial coup de grace, the New Zealand Supreme Court also issued a ruling yesterday partially overturning the Court of Appeal decision which had upheld the search warrants against the 18 accused. The Supreme Court issued its own suppression order preventing media reporting of its finding (oops!).
Kiwisfirst broke the story of this Supreme Court verdict five days before its release (story in right column).
Before retiring to reach their verdict, France and MacKenzie JJ queried Crown prosecutor Madeliene Laracy whether she could find any case where a non-party to a suppression order had been imprisoned for breach. Ms Laracy responded that the worst penalty she could find was a $15,000 fine to TVNZ. The judges concurred they could find no case where prison had been ordered.
Ms Laracy stated the difference in this prosecution was two-fold: "the nature of what occurred" and what she called "recidivist offending" which required the Solicitor General prosecuting Siemer three separate times for breach of separate suppression orders.
After retiring 15 minutes, the bench returned to declare Mr Siemer's "history and determined intransigence puts this case in the most serious category of offending". In imposing sentence, the bench relied upon the last prosecution undertaken by the Crown (November 2009), a prosecution which was withdrawn on the day of trial. Nonetheless, Judges France and MacKenzie stated that Mr Siemer "surely would have been found guilty" in that withdrawn prosecution if he had not taken down offending publications the day of trial.
The Solicitor General's first prosecution of Siemer was in January 2008, in relation to a breach of a gag order in a defamation proceeding where Siemer was the defendant. In this trial where Siemer was debarred from defending, Auckland Accountant Michael Stiassny was awarded almost a million dollars and a permanent injunction. In June of this year, the United Nations Human Rights Committee accepted the complaint that Mr Siemer's right to be heard may have been unlawfully denied and have formally requested a government response.
Months before that first prosecution, Yahoo! lawyers refused the Solicitor General David Collin's demand they pull the plug on Mr Siemer's website on the basis Siemer had been sent to prison for contempt and the site contained
"a range of material which I consider to be objectionable".
LEGAL COMPLAINTS REVIEW OFFICE; a Scam Against NZ Taxpayers
16 August 2011
Legal Complaints Review Office was first suggested in 2006 it seemed an idea whose time had come - a lay oversight body to review misconduct decisions by the
New Zealand Law Society against lawyers. The move was prompted, in part, by a
New Zealand Herald article about lawyer overcharging which drew a massive public response.
Despite public objections by the Lay Observer of the day that the move would institutionalise cronyism, the LCRO was touted by the QC's in Wellington as a more professional option, one with legislative teeth. The governing Act expressly provided that the office holder be a non-lawyer to remove any appearance of collusion with the NZLS.
But what has eventuated is a clayton's commissioner which receives funding and staff appointments from the NZLS, and provides a stream of revenue - in the form of fines assessed by the LCRO - back to the NZLS. Despite its government agency pedigree, the LCRO is awarding tens of thousands of dollars of its revenue to the New Zealand Law Society every year.
By any measure, the LCRO is not the "independent oversight" which its government mandate claims it to be. This was the case from its first appointment, when legal ethics lawyer Duncan Webb was plucked directly from a NZLS Committee and shed his law licence with a stroke of a pen to "fit" the statutory requirement for appointment as New Zealand's first Legal Complaints Review Officer.
Two years later Mr Webb resigned his position as LCRO. Two days after that Webb sent a letter out claiming to be a partner of Christchurch law firm Lane Neave - as legal representative for the LCRO! When three separate complaints were filed with the NZLS against Webb for practicing without a certificate, the NZLS disciplinary committee refused to take action on the basis it had "no jurisdiction over non-lawyers". Puzzlingly, the NZLS had already reissued Webb a practicing certificate before this decision (but after his claim to be a Lane Neave partner representing the LCRO).
A later move to remove Webb as legal counsel for the LCRO on conflict grounds was successful.
Webb is recognized by the NZLS as the leading expert on legal ethics in New Zealand. He also regularly buys adverts in the NZLS paper
It is generally regarded that Webb's abrupt departure in February 2010 was the result of active judicial reviews which challenged his LCRO conduct as partisan.
Judging from a judicial review claim which appeared in the Auckland High Court last week, little has changed in this respect. After first informing the Court the LCRO would abide by the decision of the court and seek to be excused from the review sought by Auckland Barrister Frank Deliu, the LCRO counsel appeared last week to request leave for the NZLS to appear as intervener in its place.
Take a bow New Zealand Law Society.
NZ HAS CORRUPT FREE COURTS - survey says
12 July 2011
The latest edition of the New Zealand Law Society's newsletter
Law Talk trumpets New Zealand Courts third place ranking in the recent survey of the
World Justice Project, behind Norway and Sweden. What is designed to be an annual survey currently comprises 66 nations and anticipates covering more than 100 countries within 3 years. New Zealand signed up to participate in the survey early last year.
The WJP is a U.S. based non-profit whose stated mission is to assess government accountability, whether laws are clear, equitably applied and rights driven, and whether access to justice is open to all and served by advocates and judges who are competent, efficient and reflective of the community they serve.
For those with personal experience in the New Zealand courts, it is not surprising the ranking is a result of the WJP allowing the New Zealand judiciary to "marked its own papers". Anglican Bishop Richard Randerson fronted the New Zealand survey and the government vetted survey participants.
Apparently unbeknownst to the U.S. organization, Bishop Randerson is the brother of Court of Appeal
Justice Anthony Randerson. Justice Randerson repeatedly covered up corruption by his fellow judges when Chief High Court Judge. In 2005,
kiwisfirst broke the story that Justice Randerson covered up
Justice Judith Potter ruling in favour of her brother-in-law in a case where she failed to minimally disclose to the opposition her family relationship. Randerson stated at the time he saw nothing wrong with Potter's conflict of interest and failure to disclose because the judge's ruling was "procedural" in nature. Randerson failed any mention that "procedural ruling" was appealed.
Last year, Randerson J directed the Law Society prosecute Auckland barrister Frank Deliu for bringing the judiciary into disrepute solely because Mr Deliu formally complained to the Judicial Conduct Commissioner about unlawful misconduct by Randerson's fellow
judge Rhys Harrison. Earlier, Randerson J was appointed by the government to a panel to "fix" the Judicial Conduct Commissioner's recommendation that erstwhile
Supreme Court Justice Bill Wilson face removal from the bench for ruling in favour of his bank and business partner when on the Court of Appeal in 2007-2008.
As it turned out, two High Court judges dismissed the JCC's recommendation to effectively impeach Wilson as inadequately researched and articulated. Wilson subsequently resigned after the government agreed to pay him a million dollars and a generous superannunation.
The Randerson/Government charade that ensued ranked New Zealand tops in the world in three catagories, namely: "Civil justice is free of corruption", "Criminal justice is free of corruption" and "criminal system is free of improper government influence". It appears from this stunning result that the participants were screened to disavow the corruption and government intervention in the Winebox scandal, the Mt Erebus crash investigation, the historic Mt Manganui rape trials, the Berryman bridge collapse, the Judge Wilson debacle and the current Urewera 18 trials, to name just a few.
The implementation of recent government initiatives to limit court access and appoint government lawyers to defend Crown prosecutions through the newly created Public Defence Service also apparently did not register with the government's survey participants.
Nonetheless, Attorney General Chris Finlayson was quick to crow, "The world-beating ranking in terms of lack of corruption in the judiciary was especially pleasing given some of the uninformed criticism of the courts in the last year."
Pointing out judicial corruption may qualify as "uninformed" in Middle Earth, and is well-known to risk the livelihood of any lawyer disposed to do so, but there was at least one category where the Minister of Propaganda found it hard to fudge the facts. Given the well-publicised and widespread public disgust at civil court delays which can often outlive the litigants, the NZ survey lackies threw in the towel and ranked New Zealand 18th among the "high income" countries
DEMAND ON HIGH COURT JUDGE TO RESIGN INTENSIFIES
24 March 2011
It has come to light in a restatement of a complaint to the Judicial Conduct Commissioner last month that Auckland High Court
Judge Geoffrey Venning persisted in breaching laws governing conflict of interest disclosure and failed to obtain approval from the Chief High Court Judge for his active involvement in a forest tax avoidance scheme even after being put on notice his failure violated s 4 (2A) of the Judicature Act.
revised complaint details extensive and protracted deception by the Judge, extending to a Court of Appeal ruling which has become the most widely cited New Zealand court precedent on apparent judicial bias. It appears now that ruling,
Muir v Commissioner of Inland Revenue at  NZCA 334, was built on a foundation of deception by Venning J, the judge whose conduct was deemed above reproach by that Court of Appeal ruling.
The revised complaint was filed a week before
kiwisfirst picked up the story (see "Gunning for Venning" below). It alleges Venning's deception was more serious than similar offences which led the JCC to recommend the Attorney General establish a panel to investigate former Supreme Court Justice Bill Wilson. Insisting the evidence is too strong to refer the matter to the Head of Bench, the complainants assert the evidence demonstrates Venning J
"is not a fit and proper person to hold judicial office".
The JCC has been sitting on similar complaints of judicial misconduct against various judges dating back 3 years. A September 2008 complaint against Auckland High Court
Judge Paul Heath, where Heath overturned a 2006 public finding of the Auckland Coroner in secretly convened proceedings to the benefit of his employer of two years earlier, and then permanently sealed the court file from public access, has yet to be properly responded to by the Judge. Curiously, Judge Heath's initial reply was he had never been to dinner at his former employer's house and the fees the Judge had collected from him were a small fraction of his income over his legal career. Last week the JCC was put on notice that the Act governing him requires quick attention to complaints and that he will personally be sued if he does not fulfill his statutory duty to obtain a proper response from Heath J and make a determination.
WAIT A 'MINUTE'
12 March 2011
A disturbing practice has emerged to become relatively common in the New Zealand courts; the practice of Judges issuing unreported "Minutes" to effectively decide proceedings. The apparently-unlawful transgressions extend all the way to the New Zealand Supreme Court.
Well-established law requires Courts to issue 'judgments' when dealing with legal and factual disputes which fundamentally impact the progress of a court proceeding. Because Minutes are not generally reported, the issuance of Judgments serves to provide transparency into judicial actions, maintain public confidence and demonstrate that the rule of law is being applied and adhered to consistently in the public courts.
Link to Full Story
GUNNING FOR VENNING
22 February 2011
Some of New Zealand's wealthiest investors have targeted Auckland High Court
Justice Geoffrey Venning (pictured) for acting in a conflict of interest and violating statutory law which limits judges holding other office or paid employment.
Tax lawyer Garry Muir, his former legal partner Clive Bradbury and Auckland businessman Greg Peebles filed misconduct complaints against Venning J to the Judicial Conduct Commissioner more than a year ago. The complaints allege Venning J refused to provide adequate disclosure regarding his conflict of interest or disqualify himself from presiding in Inland Revenue's action against Trinity Investments in 2005.
The complainants also allege Venning failed to get approval from the Chief High Court Judge to engage in directorship and active management of the Judge's competing tax dodge as required by section 4(2A) of the Judicature Act 1908. s4(2A) requires Judges obtain such approval before holding outside employment or office.
Venning refused application in 2004 to disqualify himself from sitting on the case. The Judge subsequently ruled Trinity to be an unlawful tax avoidance scheme at a time the judge was personally vested in a similar tax avoidance scheme - the Tahakopa Forest Trust. The judge was claiming tax deductions for expenditure on his investment and failed to disclose full details about his directorship, investment and role on the management committee of the Tahakopa Forest Trust. This, the complainants allege, gave the judge a "special vulnerability" to Inland Revenue.
It is being widely speculated this week that Judicial Conduct Commissioner Sir David Gascoigne is on the verge of recommending that Attorney General Chris Finlayson appoint a Judicial Conduct Panel to formally investigate the allegations. If this occurs, it would be only the second time such a recommendation has been made. Last year, the JCC recommended establishing a panel to investigate former Supreme Court Justice Bill Wilson for similar allegations. After a court challenge by Wilson, the High Court sent the matter back to the JCC as inadequate. Wilson resigned months later after agreeing to a million dollar payout from the government.
Justice Venning has reportedly responded to the allegations with a degree of ignorance and trepidation. On the alleged conflict of interest, Venning J relies upon the Court of Appeal decision which agreed his conflict was not sufficient to warrant disqualification. But, similar to what occurred with Justice Wilson, Venning is battling against recent revelations that his disclosure to the Court of Appeal was, itself, lacking. On the charge of holding outside office without expressed permission, the Judge claimed ignorance of the law, which he noted was implemented in 2004, while asserting that a number of other judges hold outside office in seeming defiance of the law.
In the Saxmere recall judgment SC 64/2007  NZSC 122, which proved the catalyst for Justice Wilson's demise, the Supreme Court dodged addressing this rare legal constraint on judges holding outside office by dismissively ruling
"We find it unnecessary to decide whether s4(2A) has any application...".
Chief Justice Sian Elias personally holds multiple outside offices and active investments, some of which are a guarded secret. Judges in New Zealand are also not required to disclose a register of their financial interests.
WILL NZ JUDGES OBEY THE LAW?
23 March 2011
Since New Zealand lost the Privy Council, there
has been a steady erosion of the very few laws governing judges. Laws not yet declared void by the Courts on the basis they constitute an affront to judicial independence are simply being ignored.
Dr Kennedy Graham's introduction of a private member's bill requiring Judges disclose their pecuniary interests is already being systematically gutted and dissected by the judicial lobby prior to its first reading in Parliament. It is sadly reminiscent of how the judicial lobby gutted the Judicial Conduct Commissioner and Judicial Panel Act in 2004.
Consider the facts. There is currently no requirement judges declare their pecuniary interests, no judicial code of conduct and no requirement that the courts be transparent or keep accurate records. Finally, there is no independent judicial oversight in New Zealand.
Some nonetheless believe the system works because Supreme Court Justice
Bill Wilson resigned last year after being caught ruling in favour of his bank in one case and his business partner in another. But this had everything to do with public pressure; nothing to do with the law or effective oversight. The Supreme Court had earlier refused to consider the application of section 4(2A) of the Judicature Act, a law which requires judges obtain approval to hold outside office or employment. When the Judicial Conduct Commissioner made a recommendation that the Attorney General convene a panel to formally investigate Judge Wilson's conduct, Judges
Graham Lang and
John Wild quashed the Commissioner's recommendation on the grounds the recommendation was inadequate. Far from being held accountable, Wilson was eventually bought out with a $1 million payout and lucrative judicial pension, both funded by the taxpayers.
Wild J was promoted to the Court of Appeal months later.
Few realise that before Parliament passed the
Judicial Conduct Commissioner and Panel Act, the omnipotent judicial lobby ensured the Act provided that judges effectively select the Commissioner, appoint two of their own (out of three) to any investigative panel which might be convened and judicially review any recommendation of the Commissioner. What we are left with is entirely predictable.
A different example is the
Public Records Act 2005. The Act requires all branches of government maintain full and accurate records. The Judiciary refused to comply, stating their record keeping is governed by "custom" rather than the law. In 2008, again under pressure from the judicial lobby, the
and Electoral Select Committee refused to consider mandating the Courts comply with the Act. Given the straightforward relevance of the Act, the Committee's rejection mystically implied the Courts were incapable of doing so, stating the Judiciary had its own "six year plan" to achieve full and accurate recording.
The current proposed bill requiring judges disclose their financial interests will fair no better. The Law Commission, headed by Justice
Grant Hammond, has already engaged in a flanking maneuver. In a 90 page
issues paper, the Law Commission is advocating everything from a lengthy public consultation process, including determining the effect of such legislation on "the security of judges", to a wholesale revamp of the Judicature Act or, alternatively, a new "Courts Act". This sledgehammer approach to a simple but insidious problem might be construed as ambitious until one realizes that massive overhauls of legislation provide ample opportunity for the Judges to confound the farmers and teachers (i.e. non-lawyers) who largely comprise Parliament.
Anyone who considers New Zealand judges are capable of holding themselves accountable must read the
Guidelines for Judicial Conduct, a set of rules which the judges wrote up for themselves. When it was conceived last decade, it was a result of international pressure that
"The general principles (the Guideline) identifies underpin the legitimacy of judicial function which is essential to any society organised by law."
While NZ judges may have felt the need to set out rules governing their conduct, their Orwellian view that any law or rule affecting them is not enforceable was unquestionably evident. After declaring judges must not sit on cases where they have a vested interest and must execute their duties lawfully and responsibly, the Guidelines decreed
"A system of discipline according to a code of conduct, whether imposed by executive government or judicial self-regulation, is inconsistent with judicial independence." In case anyone missed the point, the Guidelines went on to declare
"So the standards discussed are in part tentative and subject to reconsideration."
This is worrisome enough, but the Judges then promoted their new rules of conduct internationally at the same time they suppressed them from being known to the New Zealand public. It was not until Justice Wilson was caught up in scandal that the Judges were forced to publicly reveal them.
As the Australian High Court Justice JD Heydon warned in his "rule of law"
speech to the New Zealand Law Society in 2008:
"Totalitarian regimes are characterised by retrospective laws, extensive executive discretion, secrecy, obscurity, rumours of laws rather than actual laws, and instability. Above all, citizens subject to totalitarian rule find it impossible or very difficult to get before competent, determined and independent judges."
Dame Sian Elias and
Sir Peter Blanchard were in attendance. Sadly neither took notes.
24 February 2011
It may be a recession but business is booming at
Crown Law. Staff has increased radically in recent years, to approximately 250 today. This figure does not include mega-firm Meredith Connell and other firms around the country who hold Crown Prosecutor warrants.
The booming growth is not all rosy. Despite a reduction in overall court case numbers in New Zealand, Crown Law are defending more cases than ever before. The euphemistically titled "Human Rights Team" has recently emerged as a separate division within Crown Law to deal to the exploding number of rights abuse claims being filed against the Crown.
Private criminal prosecutions against Crown lawyers for offences ranging from perverting the course of justice to filing fraudulent documents are also going through the roof. TV news magazine
60 Minutes is planning to run a segment on 12 March 2011 in relation to one such "stayed" prosecution against Christchurch Crown Prosecutors Phillipa Currie and Barnaby Hawes. Both were charged with corrupting a jury and witness under s117 of the Crimes Act, in relation to the Operation Rhino prosecutions 4 years ago.
SUPPRESSION HEAVEN, APOLOGISTS AND PRIVILEGE
16 January 2010
Universities in free societies greatest strengh is in provoking thought and questioning the status quo. But
New Zealand law schools seem more about indoctrination. Case in point: TVNZ reported yesterday that NZ Solicitor General David Collins has decided not to prosecute blogger Cameron Slater for contempt over multiple breaches of court suppression orders. TVNZ reported on their website that Canterbury Associate Law Professor Ursula Cheer said Collins' decision makes sense because the subject of the suppression order has just been charged and it is difficult to say whether the naming by Mr Slater will impact on the trial - something Ms Cheer says would be grounds for contempt. What the..?!
In a further wake up call, on camera, Prof. Cheer stated
"there are hundreds of suppression orders made every week when the courts are in operation and they are perfectly sensible, ahh, for perfectly good reasons".
Oh my God! There are only 200 judges in New Zealand. This minimally averages one a week from
every judge - most of whom have more off days than "in court" days. If hundreds of victims need secret protection by Courts every week in New Zealand, it is far better that we know about it - openly - so we can solve the bigger problem.
Also, contrary to the inference in the interview, contempt, by definition, occurs when someone violates a court order - the first time. If TVNZ's reporting is accurate, and Prof. Cheer's views expressed yesterday sincerely held (or, worse, common among her peers), we are in deep trouble. Moreover, on contempt, Solicitor General Davey Collins is widely known to have prosecuted Dr Rob Moodie for publishing factual information on a Crown cover-up in a wrongful death in which the New Zealand Army was culpable (Berryman Bridge collapse), as well as
kiwisfirst editor Vince Siemer for publishing factual information on Police and judicial conduct in the Urewera terrorist raids. Dr Moodie was forced to pay $50,000 to avoid bankruptcy by S-G Collins. The charges against Siemer were dropped on the day of trial. Nonetheless, Collins filed a court application seeking $42,490 in costs. Neither of the court suppression orders breached stated a fair trial was the reason for suppressing this important information from the NZ public. Nor was this the reason for the suppression orders Slater breached.
Cameron Slater is the son of former National Party President John Slater. Whether this played a factor in Collins' decision not to prosecute is not known. The Police have charged him with a violation under a summary provision which carries a $1,000 penalty if convicted. For Mr Slater's part, he is unrepetant and seems determined to expose what he considers is an inequitable feature of the New Zealand courts.
The nature of court suppressions orders is such that the gravity of the secrecy problem in our public courts is not even known by those who make a conscious effort to find out. We simply don't know how much we don't know. Yet anyone who regularly visits courthouses knows that the situation is bad. We certainly do not need law professors telling budding lawyers that we have open and transparent courts in New Zealand while acting as apologists for the hundreds of suppression orders being granted per week. Add to this the habitual problem of reporters obtaining access to public court files and the refusal of judges to allow accurate recording in their courtrooms. Despite what some professors might say to the contrary, nothing sanitises the court as much as the light of day.
SIMUNOVICH REPORTEDLY RECEIVES RECORD DEFAMATION PAYOUT FROM TVNZ - ANOTHER INSIDER RESPONDS THIS FIGURE IS "GROSSLY INFLATED"
15 January 2010 - Updated
In what could be the largest defamation settlement in the Commonwealth, TVNZ and APN (the
New Zealand Herald) have reportedly agreed to pay a 'strictly confidential' $15,000,000 to Simunovich Fisheries and two of its directors. The figure, supplied to
kiwisfirst by a credible inside source, has yet to be independently corroborated. The strong public reaction has caused one of the many lawyers involved to respond this figure is "grossly inflated" (whatever that means).
READ FULL STORY
NEW ZEALAND vs THE INTERNET
23 December 2009
In a speech to an
R v Internet seminar sponsored by the Law Commission earlier this month, NZ Solicitor General David Collins suggested informal international law enforcement arrangements and "international treaties" be sought to combat internet publishers who do not abide by government suppression orders.
Collins admitted to undertaking "3-4" contempt prosecutions against internet publishers during his reign. These were for
www.stiassny.xxx exposing dishonest business practices of an Auckland accountant, Dr Moodie's publishing the "Butcher Report" which laid bare the Solicitor General's role in concealing exculpatory evidence in a wrongful death and
kiwisfirst's publication of a suppressed public High Court ruling in the Urerewa "terrorist raids" which found the NZ Police
[censored by the NZ government]. On the subject of ensuring a fair trial, he cited David Farrar's blogspot
kiwiblog as a "responsible" site, mentioning in respect of the Clayton Weatherstone murder trial,
before the verdict was rendered (kiwiblog) contained some comments" which were supportive of Collins' State prosecutorial position and "public sentiment".
17 December 2009
It has been a running joke for years that the top qualification for judge in New Zealand is to own racehorses. But the incest and patronage which dominates the New Zealand Court is making a
travesty of the entire justice system since it has been exposed Supreme Court Judge Wilson was basically selling his favours and then lying about it, while his friend the
Supreme Court Chief Justice Sian Elias (left) is covering it all up, and his protégé Attorney General Chris Finlayson is trying to buy the affected parties' silence with taxpayer money. Millions of dollars of taxpayer money.
FULL STORY LINK
NEW ZEALAND SUPREME COURT DOES A FLIP-FLOP
27 November 2009
Supreme Court decision handed down today breaks the hold Judges held on concealing their conflicts of interests. The fall-guy is a fellow Supreme Court Judge.
LINK TO STORY
REGISTRAR CAUGHT ON VIDEO BELIES NEW GUIDLEINES FOR JUDICIAL CONDUCT
13 November 2009
Increasing reports of court registrars and judges preventing parties access to NZ Courts have raised concerns within the New
Zealand Human Rights Commission. Commissioner Director Rosslyn Noonan admitted to the editor of kiwisfirst that complaints have increased since the loss of the Privy Council and that ensuring access to the courts is a priority of the HRC. She conceded the New Zealand Human Rights Commission has yet to take any appropriate action when pointedly questioned..
This recent revelation supports the harbinger raised by the Privy Council
Taito v Queen decision in 2002. In that ruling, the Law Lords were scathing in their criticism of the New Zealand Court of Appeal. They accused NZ Judges of limiting access to legal counsel and legal aid and unlawfully recruiting registrars to make judicial rulings in an effort to more easily manage the Court's case load. Many lawyers believe the
Supreme Court Act passed the following year - which took away the rights of New Zealanders to appeal to the Privy Council - was a case of shooting the messenger. It also seems to have the effect of sanctioning such unlawful conduct. As this
blip.tv video demonstrates, Auckland High Court Registrar Tony Mortimer is not shy about obstructing the filing of Court documents even when he is on camera. At minute 6:00, he is heard agreeing to accept the claim filing after being unable to find fault under the rules, but 2 minutes later, when he thought the camera was off, furtively tells the clerk not to assign it a case number so as to keep it out of the system.
The Court of Appeal Judges accused by the Privy Council of behaving badly now sit on the New Zealand Supreme Court - which replaced the Privy Council as New Zealanders last Court of right in 2004.
So what are the ethical requirements of New Zealand judges now that we no longer have the disciplining benefit of the Privy Council? Would you believe it is a secret?! At least it was until today. After pressure from some lawyers intent on knowing what binds the conduct of New Zealand Judges, Chief Justice
Sian Elias reluctantly agreed, effective today, to permit the NZ
Guidelines for Judicial Conduct be posted on the Courts of New Zealand government webpage. Quite interestingly, they appear under the caveat
"Note: These guidelines were approved in 2003. They are expressed to be guidance to judges, not rules for them. The guidelines are subject to revision from time to time." Yet these conduct guidelines certainly look like rules with words such as "should" and "always". It is even more evident that, whatever the intent of creating them, a good many judges have not been following them. Hence, the last line is perhaps an omen. As with the seven commandments in George Orwell's
Animal Farm, revisions are its destiny now that they have been displayed on the barn door.
CROWN MADMEN TAKE THRONE
12 October 2009
This story is foremost an insight to widespread breach of public trust and abuse of office by the head of Crown Law in New Zealand. While far from
unique when it comes to officials in power, the evidence in
Solicitor General David Collins' case displays a pattern of criminal behavior over many years. Two thoughts will likely cross your mind as you read it: first, the detail is so specific and scandalous, Mr Collins would certainly sue for defamation if it were not true; and second, if true, why is the mainstream media not reporting his chronic offending to the New Zealand public?
COURT PRESIDENT TOOK 'BRIBE' TO PROTECT VECTOR CHAIRMAN
15 September 2009
Court of Appeal President William Young accepted financial assistance in exchange for defeating the course of justice in 2007.
DRIVEN TO DESPAIR
10 August 2009
One woman's nightmare with two bad lawyers exposes problems within the closed shop fraternity, leaving nowhere to turn for justice, and despair for life itself.
THE INDIVISIBLE CROWN -
Why NZ Citizens are Outcasts in their own Courts
23 July 2009
The Judicial and Crown law oath starts with allegiance to the Crown and to do right by all people. But what happens when these allegiances conflict? In recent years, a substantial body of case law has evolved within New Zealand which asserts rights which conflict with the interests of the Crown (defined as government entities and those acting on behalf of those entities) are to be subjugated.
NEW ZEALAND SUPREME COURT GUTS JUDGE DISCLOSURE LAW
6 July 2009
In an unprecedented judgment from the New Zealand Supreme Court Friday, the full court
declared New Zealand Judges are not required to disclose their personal and business relationships with those who appear before them if it is not evident those Judges stand to personally benefit from their subsequent ruling.
NEW ZEALAND SUPREME COURT LEGALISES DISCOVERY EXEMPTIONS
21 May 2009
New Zealand Supreme Court has dismissed a legal challenge to a 2004 High Court rule change which exempts parties to litigation from discovery disclosure. The full bench ruling [
SC 62/2008  NZSC 98 and 24 February 2009 (unpublished)] endorsed the effect of this new
rule allowing parties to avoid identifying their discovery documents.
The dour effect of the relevant Rule change on discovery law had been discussed in Sim's Court Practice (NZ):
"The documents in the first (open) part do not need to be individually described. Each document should be numbered and
the affidavit will simply refer to the range of numbers."
LOSS OF HONOUR
11 April 2009
On 30 March 2009, the nascent New Zealand Supreme Court officially ruled the Magna Carta and the Judicature Act 1908 were subjugated by "Judicial discretion" in New Zealand.
ASHER LATEST JUDGE TO CONTRAVENE
PUBLIC RECORDS ACT
8 March 2009
In a landmark case concerning disclosure responsibilities of local councils on ratepayer-funded expenditures, Auckland High Court Judge Raynor Asher refused twice this week to release a High Court transcript for use in an appeal.
READ FULL STORY
AUCKLAND COUNCIL ONE OF MANY SKIRTING PUBLIC RECORDS ACT
3 Febraury 2009
Public Watchdog Penny Bright is expanding her fight to Parliament to force Auckland City Council to disclose in its annual report what individual contractors are being paid. Last year Ms Bright formally disputed her rates until the Council revealed where $850 Million spending on outside contractors went in fiscal 2007. Ms Bright lost a resultant action brought against her by the Council in the District Court. Her appeal is now before the High Court.
Spurred by the discovery last year that Deputy Mayor David Hay holds trust shareholding in City contractor Eco Cover NZ Ltd and that many other local councils are plagued with conflicts of interest, Ms Bright is now seeking to use the
Public Records Act 2005 and press Parliament into ammending the
Local Governments Act 2002 so as to compel all councils throughout New Zealand to list details of payments to outside contractors in their annual reports. Public keen to support such a measure can download the
THE VANISHING JURY IN NEW ZEALAND
14 June 2008
On a practical level, jury trials are becoming extinct in New Zealand. The last civil trial by jury was granted in 2004. Judges are also putting pressure on lawyers and Parliament to curtail use of criminal juries. So far, the move away from juries has come without changes to the law.
STIASSNY SICKS LAWYERS ON TVNZ IN ATTEMPT TO STOP PROGRAMME TO AIR
26 October 2008
Auckland Insolvency accountant Michael Stiassny wages offensive to prevent tonights' TVNZ
Sunday Programme segment on his 4 year old defamation suit against
kiwisfrist Editor Vince Siemer from airing - threatening to bring yet another defamation suit against TVNZ. Stiassny had earlier declined TVNZ's request to give his side to the story as to why he failed to advance his defamation claim after obtaining a High Court gag injunction against Mr Siemer so many years ago.
JOHN KEY SUBJECT OF INSIDER TRADING COMPLAINT to SERIOUS FRAUD OFFICE
10 October 2008
Public Watchdog Penny Bright filed a well supported complaint
to the Serious Fraud Office this week against National Party Leader John Key for using his Parliamentary position to obtain inside information on Tranzrail's fortunes in 2003, at a time he was a shareholder of the company
OUTSIDE LINK TO STORY
Solicitor General Collins Mocks Fair Trials and Public Right to Know at Dominion Post Contempt Trial
16 September 2008
Solicitor General David Collins opened with a bang yesterday in the Crown's prosecution of the Dominion Post for contemptous breach of a court suppression order in the ill-fated Crown prosecution of so-called 'terrorists' last year. Learn why this evidence in a case which was long ago dropped is deemed dangerous for the public to know about.
Bill Wilson's Private Appointment to Supreme Court a Lesson to Public
4 September 2008
"Friends of Bill W" is taking on a new meaning after the
meteoric rise of Bill Wilson (right) to the New Zealand Supreme Court bench this year.
Less than two years ago, Mr Wilson was sitting in his law office trying to figure out where his next paying client was coming from. His Rich Hill Stud Farm - which he owned with fellow Queen's Counsel Alan Galbraith - had the potential of printing money when times were good. Compared to this, his new $400,000 yearly salary as a Judge could be considered a paltry sum, even if
Justice Wilson now gets chauffered around Wellington in a limousine and has all his lunches catered. As odd as this promotion is in the annals of history, the real mystery is finding out any details on exactly how Mr Wilson was vetted in the selection process to Supreme Court.
Read full story
NOT ON MY WATCH
25 June 2008
Former Police Prosecutor Grace Haden is making a name for herself as a private investigator exposing corruption and it may prove more valuable to society than her former police role.
AUTHOR ANNE HUNT LAMENTS NZ COURT'S HANDLING OF CONTEMPT CASES USING HER OWN EXPERIENCE
20 June 2008 -
by Anne Hunt
The question has to be asked whether contempt of court is becoming a convenient excuse for the Courts to ignore the provisions of the New Zealand Bill of Rights Act.
Section 14 of the Bill of Rights Act says quite clearly that:
Everyone has the right to freedom of expression, including freedom to seek, receive and impart information and opinions of any kind in any form.
STRATFORD RACING CLUB MEMBERSHIP DECIDED BY COURT OF APPEAL
20 May 2008
One experienced racing aficionado sees the move as worrying judicial activism.
Read Full Story
JUDGE JUDY UNDER FIRE FOR ABORTING TRIAL. Powerful QC Called POTTER J
"An embarrassment to the Court"
27 March 2008
Recent Court events demonstrate why
Grant Illingworth QC's remarks that Auckland High Court Judge Judith Potter is "an embarrassment to the Court" were as wise as they were scandalous.
AUCKLAND CITY DREDGES THROUGH COUNCIL DIVISIONS (Link to r
ate revolt info)
7 March 2008
There is a new guard in charge of Auckland City Council. They are a fierce and determined bunch. In a spirited "Combined Committees" session on Wednesday 5 March, fights over money and politics created banter bordering on a verbal brawl.
READ FULL STORY
AUCKLAND RATES RISE; FUNDS GO DOWN TOILET
4 January 2008
"Where do ratepayer monies go?" You would be surprised how much this Pt Chev toilet cost (photo next page), how much money goes missing and how much can be spent by Auckland City Council without competitive bidding.
$62 MILLION ANNUAL BUDGET FOR AUCKLAND CONSULTANTS
21 May 2008
A long fought for report from Auckland
City shows external consultants may be paid a staggering $62 Million in the current fiscal year - twice as much as three years ago. Find out how this happened.
NZ AUTHOR'S SAD AND SHOCKING SAGA IN THE HIGH COURT CAN NOW BE TOLD
1 May 2008 - After Court of Appeal overturns contempt finding and revokes suppression order of Justice John Wild.
Read Fulll Story
VECTOR TO SELL ASSETS TO PAY DOWN DEBT
20 April 2008
Line's company Vector is currently in a race to sell off its' "gold plated" Wellington to Auckland transmission lines to pay down its burgeoning debt.
DETERIORATION OF POLICE STANDARDS PLAGUES FORCE
Dateline: 10 March 2008
Less than a generation ago the New Zealand Police endeavoured to increase the quality of its ranks by recruiting more educated and morally conscious constables.
The story of what went wrong.
NEED BETTER WORK STORIES?
25 February 2008
The twelve Police detectives who laid siege to the Gulf Harbour home of Vince and Jane Siemer in the early hours of Thursday morning 21st Feb 2008 can add the intimate details they learned of the family's personal lives to their Friday nights out on the town with mates.
SEE FULL STORY
DEATH AND GREED ON MATAKANA ISLAND
13 February 2008
You get a feeling things are not right when, within 5 days of a man being found incinerated in the back seat of his car - the car crudely parked on an isolated road - the police investigator is claiming suicide. The primary indicator of suicide is said to be the empty petrol container allegedly used to create the inferno found tucked away in the closed boot of the car.
JUDGE WILLY IN HOT WATER OVER RIVER DIVERSION
16 January 2008
Retired District Court Judge Tony Willy of Blenheim failed to divulge his financial interest in hydro-generation contractor while ruling in favour of five new, highly-contentious hydro plants on Wairau river.
POLICE DISCHARGE FIRST OF TWO CRIMINAL PROBES AGAINST SOLICITOR GENERAL
20 February 2009
Detective Superintendent Rod Drew completed his eight month investigation into an allegation of perjury against Solicitor-General David Collins with a six page summary which completely exonerated Mr Collins.
The original six part allegation, made by author and District Councilwoman Anne Hunt, related to an 11 May 2007 sworn affidavit by S-G Collins for Court of Appeal proceedings she was involved in at the time. It concerned a matter dating back to 2001 when Collins was her lawyer. In his affidavit, Mr Collins told the Court he had not legally vetted Ms Hunt's book manuscript
Broken Silence. The Wellington High Court had ordered the book banned and copies destroyed for violating a Court suppression order in an earlier case where even the names of the parties were suppressed by Court order
. Collins was also lawyer for that plaintiff, whom the Court abstractly referred to as "M". The problem arose when Ms Hunt produced the manuscript with David Collins' handwritten notations clearly providing legal advice in the margins.
Detective Superintendent Rod Drew's investigation conclusions immediately drew fire when he defined his
"Method of Investigation" as
"not (as) a dispute about what was done, but rather the reason that particular acts were done." Such methodology took the investigation from a factual finding to the much higher evidential standard of conspiracy to commit a criminal act. Proving an effective conspiracy to commit an unlawful act is extremely difficult because it requires proof of intent - the hardest thing to prove in a Court of law.
Kiwisfirst spoke with Det. Supt. Drew today but he refused to comment, referring the caller to the official NZ Police press release
http://www.police.govt.nz/news/release.html?id=4810. He also refused to provide an electronic copy of his six page investigation summary for posting along with this story.
Ms Hunt's lawyer Steven Price was contacted but replied that he had not seen Drew's summary, which was dated 17 February 2009, so could not comment.
Drew concluded his summary with a statement that he submitted his conclusions to "independent review" by Hamilton barrister Phil Morgan QC prior to releasing them and that Mr Morgan completely concurred with his findings on all six aspects of the complaint. This is surprising. For example, on the overriding evidence that Mr Collins perjured himself, Drew began his summary by stating that Ms Hunt's failure to call Mr Collins for "cross-examination" undermined the charge. He claimed this supported his conclusion
"Dr Collins was not afforded the opportunity to be heard". This was legally and factually inaccurate. The affidavit stands alone as a record of being heard. Moreover, Collins could not be cross-examined because he could only be called as a friendly witness. Hence, he could walk into the witness box and claim to be Cleopatra and the lawyers could not challenge his answers. No responsible lawyer would call a witness whose answers they cannot trust.
Drew's many other conclusions admittedly were based on a lack of evidence as to intent or the quite plausible conclusion in one case that Collins was honestly mistaken.
Ironically, had Drew found merit in the complaint, he would have had to submit a recommendation for approval to prosecute Solicitor General Collins to Collins' office.
In his "Final Comment" Drew took a lowbrow and patronizing swipe at Ms Hunt, obviously for putting him in the unenviable position of confronting suspect conduct by the most powerful lawyer in New Zealand at the time of the complaint. Drew pontificated:
"It is clear from the documentation... your mental health suffered. I hope that completion of this investigation will allow you to put this matter behind you and to maintain good health in the future." back to front page
DIRECTOR'S DISDAIN DOOMED SERIOUS FRAUD OFFICE
13 December 2007
Now that the Serious Fraud Office is being disbanded, it has been revealed that much of the culpability for its demise rests with the outgoing Director David Bradshaw and his Machiavellian approach toward prosecutions. The mounting paradox was that no law stood in the way of Mr Bradshaw and his staff's determined mission of prosecuting 'bad guys'. The effect was the SFO often acted more egregiously than those they prosecuted. So systemic was Mr Bradshaw's disregard for established legal constraints within the SFO that he did little to hide his virulent feelings that it was the laws of New Zealand which were the biggest impediments in SFO prosecutions. His staff mimicked his Rambo administrative style to keep the boss happy.
Mr Bradshaw's bold attempts to circumvent two elementary laws are often cited.
In October 2005, Mr Bradshaw issued a briefing paper in which he disparaged the foundation of every jurisprudence system: legal professional privilege. He wanted legal privilege not to impede the SFO's investigations, saying
"My proposal is that the law be relaxed in relation to legal professional privilege to allow the Serious Fraud Office to obtain all relevant documents".
But Mr Bradshaw went much further. He wanted to circumvent judges as well. On his stated goal that the SFO be able to seize whatever it wanted from those the SFO investigated he wrote at the time,
"The process for having a Judge determine relevancy is fraught with problems as Judges are not fraud investigators nor can they be expected to know the full scope of any investigation."
If this did not scare the beejesus out of law-respecting people, Mr Bradshaw was just getting started. He has also been a vocal advocate for the last two years that individuals his office suspect of wrongdoing should not have the right to remain silent - and that they should be prosecuted if they do. He does not consider those accused by the SFO are entitled to rely on civil rights laws. He infamously called the New Zealand Bill of Rights Act
"The Rogue's Charter" in his 2007 report. In a brilliant stroke of irony, his reason for dismantling the Bill of Rights was rationalized thusly,
"There is a strong public interest in ensuring that to the greatest extent possible serious criminal offending is prosecuted and that miscarriages of justice are kept to the absolute minimum."
As much as the law apparently got in Mr Bradshaw's way, the abysmal record of the SFO was perhaps the last straw. Arguably their biggest success story over the last 3 years was the successful prosecution of former Act Party member Donna Awatere Huata for embezzling $80,000. Meanwhile, the large and truly serious fraud cases were often not being advanced because of personal connections serious perpetrators had within the office. This effectively insulated some of the most serious offenders from prosecution. At the same time Robert Fardell QC and Anthony Lusk QC were two legal rogues guilty of serious past legal misconduct who were actually conducting criminal prosecutions on behalf of the SFO.
The politicizing and polarizing culture in the Office cut both ways. A case now before the Courts concerns a wrongful prosecution alleged against the SFO by Tuariki Delamere, after he was found not guilty in an earlier SFO prosecution which many believe was politically motivated.
Mr Bradshaw's ten year tenure with the SFO put him increasingly in a comfortable position to mold the office into his own image. He surrounded himself with pliant staff who would follow his lead. Gus Adolph Andree Wiltens was one such lawyer who rose to the rank of Assistant Director. On 29 October, Mr Wiltens was appointed Judge in the Manukau District Court. It will be interesting to see how this appointment helps him in the criminal prosecution by Mr Delamere which names Mr Wiltens personally.
[Back to Front Page]
SOLICITOR GENERAL'S DEMANDS EXCEED HIS AUTHORITY
9 August 2007, Wellington
In a blatant abuse of position and legal authority, the new Solicitor General of New Zealand, David Collins, demanded the webhost of Kiwisfirst shut down the website. The first notice from the Solicitor General was sent on 19 July 2007, claiming to then-host Elighten that the website was defamatory of judges. This claim and subsequent demand was despite the S-G's authority being limited to initiating due process proceedings and no documented allegations - let alone determination - of defamation being made. The host immediately shut down the site but re-launched it four days later after determining the S-G had no authority in law to make such a demand.
Formal complaints regarding the S-G's actions have been filed with the Office of the Attorney General Michael Cullen and a petition asking for an inquiry is being prepared for Parliament. As this article goes to press, the office of the S-G has not issued a formal response to the allegations of abuse of office.
[RELATED STORY LINK BLOCKED BY ORDER OF NZ SOLICITOR GENERAL - EMAIL HIM
TO ASK WHY]
On 31 July 2007, a further letter was sent by the Solicitor General, this time alleging the website breached an 'interim' injunction that has been in place for more than two years - an injunction that prevents evidence
[SENTENCE DELETED BY ORDER OF NZ SOLICITOR GENERAL -
EMAIL HIM AT
TO ASK WHY] by Vector Energy Chair Michael Stiassny being made public. Mr. Stiassny has failed to advance his defamation claim that underpinned the injunction since it was issued in April 2005. Recently, the Court of Appeal ignored evidence - evidence furthermore caught on tape - that showed Mr. Stiassny had perjured himself when filing the affidavit required to obtain the injunction. At least two of Stiassny's former lawyers now sit on the High Court. Mr. Stiassny has recently become a close business associate of Supreme Court Chief Justice Sian Elias's husband Hugh Fletcher.
In 2005, Mr. Siemer estimated Mr. Stiassny, mainly through his company Ferrier Hodgson,
[SENTENCE DELETED BY ORDER OF NZ SOLICITOR GENERAL - EMAIL HIM AT
email@example.com TO ASK WHY]. Moreover, Siemer uncovered evidence that formal complaints of gross financial misconduct against Stiassny by some of New Zealand's most talented inventors and business people dating back 15 years were regularly buried in complaint committees, often with the assistance of a couple powerful officials within the Bank of New Zealand.
Mr. Stiassny made his personal fortune as an insolvency practitioner and Mr. Siemer, who himself holds an MBA degree and is a successful businessman with interests here and in the United States, has staunchly maintained that his investigation into Mr. Stiassny's business record has revealed a troubling ineptitude in managing productive enterprises - all of which pose significant ongoing risk to the New Zealand public.
Since these revelations began to surface Mr. Stiassny has been kicked off the boards of Met Life and Metrowater Ltd. While Mr. Stiassny has brutally held on to his chairmanship of Vector, it has come at a significant cost to the Country with the three most experienced directors on the Vector board resigning en-masse last December, and the CFO and CEO both resigning in the last three months. All cited conflicts with, and lack of confidence in, Stiassny as a significant factor in their departures.
It was reported that the departing directors noted Stiassny's litigious ways. On this point, Siemer says Stiassny is not only the single greatest patron of the Courts but extremely blessed by gratuitous judgments that defy legal reasoning in many cases. Stiassny's court largesse and lawyer-turned-judge relationships will be detailed in a book Siemer plans to publish next year..
Vector is the monopoly electricity lines company for Auckland and Wellington. #
MANY LEGAL ISSUES LOOM IN DISTRICT LAW SOCIETIES' FINAL DAYS
Dateline:3 June 2007
Lawyers and Conveyancers Act 2006 spells huge changes for district law societies
SOME OF NEW ZEALAND'S TOP JUDGES HEAVY IN DEBT DESPITE LARGE SALARIES
Dateline:1 May 2007
There is escalating fear that increased personal debt among some NZ judges is leaving the judiciary ripe for bribes and scandals on a scale never seen before. How serious is the problem and what if anything is being done to protect the public?
read full story
HIGH COURT JUDGE WILLIAMS FORCED OFF LEGAL NEGLIGENCE CASE
12 March 2007
In a procedural victory for the shareholders of Paragon Services Limited and Gulf Harbour couple Vince and Jane Siemer,
Justice Hugh Williams has been compelled to remove himself from presiding over their trial against the estate of the late Auckland Barrister Robert Fardell QC. Like Fardell, Justice Williams is also a Queen's Counsel (
link to history of Queen's Counsel). The case involves a civil claim for upwards of $2,000,000 damages allegedly suffered by the plaintiffs as a result of Mr. Fardell's wrongful advice. The claim stems from Mr. Fardell's advice to the Plaintiffs in December 2000 to petition the High Court for receivership protection of Paragon against an imminent theft of intellectual property valued at $750,000. The company had no debt at the time.
The plaintiffs allege that after they agreed to Fardell's advice to put the company into the hands of prominent Auckland insolvency practitioner Michael Stiassny, no effort was made to recover the intellectual property that went missing. Instead, Fardell and Stiassny together racked up over $150,000 in fees, a significant portion of which were subsequently labeled as errors by Stiassny after Siemer challenged them. Court records show Stiassny ***CONTENT CENSORED BY ORDER OF THE NEW ZEALAND GOVERNMENT***. Siemer says Stiassny then pressed the plaintiff directors to agree to liquidation. The directors refused, instead petitioning the High Court to revoke Stiassny's appointment, which it did on 18 July 2001.
The plaintiffs filed suit against Fardell when they discovered a year later that Fardell and Stiassny were business partners and Stiassny was a long-time friend and client of Fardell, facts neither man had disclosed. Stiassny and his company Ferrier Hodgson are not named in the action, as the plaintiffs had acted on Fardell's advice that they needed to sign an agreement absolving Stiassny and Ferrier Hodgson of legal liability before Stiassny would agree to return company assets - this after the Court revoked Stiassny's receivership. Nonetheless, Ferrier Hodgson have since provided an affidavit in a related defamation suit Stiassny filed against Siemer saying they were unaware as to the exact role they were to play in the receivership debacle, claiming to have received only a copy of the court decree as their instructions.
The case has been on foot in the High Court since October 2003. Two weeks after the plaintiffs presented evidence to Justice Williams (in December 2005) that Mr. Fardell had three times perjured himself in the case, Fardell apparently fell off the 15 meter high Takapuna Head cliffs near his home at high tide. The coroner's report into the apparent suicide has subsequently been suppressed by order of the Court. Since Fardell's death the plaintiffs allege Justice Williams repeatedly obstructed the advancement of their case, claiming to lose filings and refusing to rule on procedural matters where the rules favoured them.
After repeated complaints to Chief High Court Judge Randerson and a formal application being filed with four affidavits in support of Justice Williams' forced recusal from the case, Williams agreed in October 2006 that he would step aside in favour of a judge from outside the Auckland district, but 4 1/2 months on he had failed to do so. Matters came to a head at the latest hearing on 19 February 2007 after Williams sought to scale back obviously padded invoices submitted by Stiassny's lawyers more than 80% rather than dismiss them out of hand. The plaintiffs have appealed that decision to the Court of Appeal, but now require leave of the High Court for that appeal to be heard. In a Minute issued the next day, Williams finally agreed to allow Justice John Hansen to hear further matters in the case.
In 2002, according to the National Business Review, Williams, age 67 and originally from Palmerston North, refused to recuse himself from presiding over a NeuronZ intellectual property lawsuit where he was a close friend with one of the litigants, NeuronZ investor Jenny Gibbs. Justice Williams barred media from the proceedings and subsequently ruled in favour of his friend. A search of the Companies Office register showed two thirds of the shareholding at the time was held by a company set up by the University of Auckland on behalf of some prominent New Zealanders investors.
In the Fardell lawsuit a two week trial fixture set for June 2007 had to be abandoned due to the delay resulting from Justice Williams attempts to continue presiding over the case. The plaintiffs are still hopeful that the trial can be heard this year. Anthony Lusk QC is representing the insurance company on behalf of the deceased defendant.
QUEEN'S COUNSEL TRAINING: ONE LAWYER'S JOURNEY
Date published: 14 March 2007
"Getting to the top takes time, skill and endurance along with guidance and mentoring from respected, experienced, successful
practitioners together with ongoing training and education. To assist in the professional development of junior and intermediate litigators this conference has been specifically designed with this objective." So began the Lexis Nexis training seminar for aspiring lawyers as Grant Illingworth QC launched into his presentation on "The fundamentals of the law of evidence" in April 2006 at the Langham Hotel in Auckland. Doubtless, with this lead in, the 55 year-old Mr. Illingworth felt he had finally arrived.
Paradoxically, this introduction offered little on Illingworth's actual climb up the professional ladder. Anecdotally, basically languid and reactionary when it came to his lawyerly duties, he was not the traditional Queen's Counsel archetype. But what he lacked in legal skills and preparation, he made up for in the social circles that ruled the judicial appointment roost; a glad-handing politician's style with a mild, concerned demeanor toward the people he spoke with in the trade.
"Queen' s Counsel" (QC) represents an exclusive club in the legal professional, with less than 75, overwhelmingly male, practicing QC's in all of New Zealand (many other QC's are currently judges). The reference itself harks to the current monarch of England, is bestowed by each Commonwealth nation and is ostensibly awarded to distinguish outstanding achievement among lawyers. The first Queen's Counsel was Sir Francis Bacon, who was appointed in England in 1597. While the Queen's Counsel title carries with it an unassailable quality in New Zealand jurisprudence (this reporter could find no record of a Queen's Counsel in New Zealand ever being struck off the roles) its origins were somewhat more inauspicious. Sir Francis Bacon subsequently fell from grace having confessed to 23 charges of accepting bribes in the Court of Chancery. This resulted in his being sentenced by the House of Lords to imprisonment in the Tower of London.
In the ongoing move to create a national identity apart from the U.K., the current Labour government has moved to abolish the designation (along with knighthoods as well). Consequently, this would make QC's a dying breed in New Zealand. Many in the legal profession welcome the change. Other than creating license for those given the title to charge a higher fee, it was always slightly dubious as a strictly meritorious honour given the overwhelming political influences involved. This is unfortunate for the many QC's who have truly stood out in their profession as the political graft has diluted the intellectual and skill quotient in the club. Still, it was always a sought after and widely respected title.
For Mr. Illingworth QC, he is simply glad to be in the club. It appears a relative few lawyers who have seen the man in action would attribute his title to merit. The lawyers this reporter has spoken to are reticent to say anything detrimental about the man personally - most commonly referring to him as a hospitable fellow - but none went so far as to praise his legal abilities. A cursory look at the man's recent record on major cases seems to justify this lack of praise:
2004 - Illingworth represents Dick Hubbard in his defamation suit against the NBR in what was a hatchet job that saw a reporter sneaking into Hubbard's church and printing aspersions regarding how he and his wife worshipped, as well as leveling attacks on how farcical Mr. Hubbard's business success claims were. Illingworth claims he won this case for Hubbard but the reality is that the case was essentially settled (after the NBR agreed to make a charitable contribution). It must be stressed that he did not lose.
2004 - Illingworth defends Israeli spies caught using fraudulent N Z passports to cloak their true nationality in their espionage activities (and put the focus of their espionage activities unduly on NZ). The spies are found guilty, but under pressure from the Israeli government, the spies are released three months into their jail sentence and deported. Illingworth filed an appeal on behalf of the spies conviction but said this appeal would not attempt to reverse the $100,000 fine the spies had paid by order of the Court to the Cerebral Palsy foundation, Illingworth saying this now was a "gift" by the two convicted spies. Their appeal was subsequently withdrawn by Illingworth.
2005 - Illingworth advises Vince Siemer to plead guilty to a contempt action initiated by Michael Stiassny. Says a pleading of guilty will reduce a potential jail sentence of two years down to six months, with only three months of that sentence likely to be served. The next question by Siemer exposes the fact that Illingworth hadn't read the file, with Illingworth saying "There is a lot more of the file I need to read". Siemer, with no legal training, goes on to represent himself at the Court of Appeal.
2006 - Illingworth breaches legal privilege by mailing unsolicited client email communications to the Court of Appeal and to opposing counsel in CA 55/06 in response to a witness summons being issued on him by the Court of Appeal. Illingworth then sends a letter to the president of the Court of Appeal, William Young P, pleading ignorance and confusion and asking to be let off the hook. Illingworth retrieves the privileged emails from opposing counsel and Court three days later; Justice Young says he did not read them so no damage had apparently been done. The Auckland District Law Society is called upon to investigate.
Poor legal preparation, breach of fundamental principles and negligent advice aside, Illingworth does possess a remarkable survivor's instinct that has proven invaluable in the parochial circles of the New Zealand courts. It is difficult to conceive, for example, that he would so blatantly violate the fundamental precept of client privilege unless he was convinced the Court would look the other way. His communications with William Young P not only had the Court looking the other way on his breach of legal privilege but resulted in the Court withdrawing the witness summons for Illingworth to appear. The effect was that Illingworth was not compelled to give evidence regarding comments he made that Auckland High Court Judge Judy Potter regularly breaches her oath of office. He knew too well the Court would be relieved if he was not forced to give this evidence. In the same fashion he has held up providing responses to the Auckland District Law Society investigation (is he able to work the corridors of power there?), a new professional standards director having recently been appointed at the ADLS. Mr. Illingworth does indeed get around. When Auckland University law school instructor Scott Optican was provided evidence of Illingworth's breach of legal privilege and providing a materially false affidavit to the Court of Appeal for his comments, he refused to look at it, saying that Grant Illingworth was well known at the Law School.
Mr. Illingworth is going to need these friends as the ADLS complaint against him heats up. Watch this space for developments. ##
PARLIAMENT COMMITTEE FINDS AUCKLAND CITY MISLED CITIZENS ON EFFORTS TO OVERCHARGE $324 MILLION FOR WATER
22 September 2007
A Parliamentary Select Committee yesterday issued a report extremely critical of Auckland City Council's plan to run up profits of $324 million on supply of drinking water in order to fund other city services. The Committee condemned the practise and strongly advised the Council to reconsider its demand that Metrowater Limited (the Council controlled utility) increase user charges to provide 'charitable contributions' averaging $32 million per year over the next ten years.
The report noted the Office of the Auditor General and City's response that they both relied on 'legal advice' in adhering to the 'letter of the law' so as to ostensibly comply with clause 3.2.2 of Metrowater's constitution forbidding such profit demands from the City on this essential commodity. While not directly attacking the legal opinions the committee concluded it was
'unwise for a public body to stretch the charitable payments provisions so far, and this undermined the public's trust in this local authority'.
Petition 2005/106 was lodged with Parliament by 40 petitioners, and was pushed by the
Water Pressure Group, a public watchdog organisation. Ms. Penny Bright, media spokesperson for the group, said this report would expose Mayor Dick Hubbard's (photo above) re-election campaign slogan of 'The People's Mayor' as a cynical affront to the average ratepayer whom he has gouged with inflated water charges in order that tens of millions can be spent annually on corporate consultants. #
Local News: 26/7/06
Auckland judge prevents the Auckland Coroner from releasing his findings into Robert Fardell QC's suicide.
The public were again denied the right to know the full circumstances surrounding prominent barrister Robert Fardell QC's fatal fall from the 12 metre high Takapuna Head cliffs on 11 December 2005 when an Auckland judge ruled the Auckland Coroner was prevented from releasing his findings until judicial review proceedings are conducted.
This action follows months of cover-up, where the last person to see the defendant alive (lawyer Christopher Morris) refused to grant the police an interview and the family hired prominent barrister Harry Waalkens QC to cover up the suicide and ensure the public inquest was conducted in secret (28/2/06).
Years of cronyism have created a siege mentality that pervades the Auckland judiciary. Concerns are rampant as to what secrets Fardell may have wanted to get off his chest before he fell to his death and what damage this may cause to the vested interests within the provincial and secretive court.
Several lawyers contacted expressed grave concern that there was no oversight or accountability of judges and this was yet another example where the Court put the protection of one of their own before the public good and interest. One called it "ugly" and another said that it demonstrates that the Court operates first and foremost to protect its favoured members.
Secret inquest into death of Robert Fardell exposed
n a dramatic turnaround to initial reports, the Auckland Coroner, Murray Jamieson, today was forced to concede Robert Fardell QC did not drown on 11 Dec. 2005 while swimming but instead suffered massive injuries from a fall before drowning. This ruling came almost 4 months after an attempt by the Coroner's office to conduct the initial public inquest (held on 28 February 2006) in secret, in contravention of the Coroner's Act 1988 that required public notification. Despite the body being found on rocks at the base of Takapuna Head cliffs on Auckland's North Shore, and no suspicions of homicide, the Coroner did not suggest death was a suicide. Prior to this ruling, Fardell family lawyer Harry Waalken QC had attempted unsuccessfully to suppress all the inquest evidence, arguing further that the death could be accidental and that the Coroner had no standing to suggest to the contrary. This position ignored Mr. Fardell having had to breach a fence to reach the cliff edge. Fardell was 52 years old when he died.
NATIONAL COURT NEWS : dateline 25 October 2006
Michael Stiassny is seeking the shelter of the New Zealand Courts yet again for his role in what is being recognized as the largest tax scam in New Zealand history, the $1.7 Billion CWF forestry tax dodge.
The Inland Revenue Department shut the tax dodge down after nearly four years of operation and ordered the parties to pay back the taxes, as well as millions of dollars in penalties. The tax dodge vehicle, CWF Holdings Ltd, was then cast off into liquidation by the perpetrators. The appoint- ment of the liquidators by Stiassny and others was subsequently challenged in the High Court at Auckland by Trinity Foundation Limited, a charitable foundation administered by the Anglican Church that was used by Auckland Solicitors Bradbury & Muir as the cover for the tax avoidance scheme. Trinity claims not to have been paid in excess of $12 million owed it by CanWest, the local division of the Canadian Media conglomerate. Stiassny and Grant Graham are alleged to have breached their duties to the company and engaged in a breach of trust by acting minimally in a de facto fiduciary arrangement with CanWest.
In an appeal brought by Trinity, and heard by the Court of Appeal on 18 September 2006, Trinity counsel Bruce Stewart QC sought the right to pursue Stiassny individually for his key role in the failed tax scam, noting that the current liquidators are unlikely to do so as they are beholden to Stiassny and certain others involved. As of this printing, no ruling has yet come down from the Court of Appeal. The IRD has not legally prosecuted those involved in the scheme. Anonymity was granted as part of a settlement reached.
Two of the three judges considering the Trinity appeal, namely Court of Appeal President William Young and Justice Terence Arnold, are at the same time considering an appeal on the papers for a stay of a High Court costs ruling that Stiassny secured against Auckland businessman Vince Siemer for an alleged violation of a High Court injunction, an injunction that Stiassny has claimed prevents Mr. Siemer from revealing information regarding other dubious accounting schemes that Mr. Stiassny has been involved in. In order to obtain the injunction, Mr. Stiassny submitted an affidavit to the Auckland High Court on 8 April 2005 wherein he swore that none of the allegations Mr. Siemer had made about him on the
www. stiassny.org website were true. Stiassny then filed a $1.25 million defamation suit against Mr. Siemer on 12 April 2005, as he was required to do in exchange for obtaining the ex- parte injunction against Siemer, but he has repeatedly failed to advance his case against Mr. Siemer since obtaining the injunction. On 6 October 2006, Stiassny failed to comply with a court imposed deadline that he provide discovery in that case.
These matters are part of a firestorm of controversy currently surrounding Mr. Stiassny. Last week, Stiassny refused to allow media cameras into the Vector Limited AGM held in Auckland. The very next day Stiassny was the catalyst for a raucous revolt that disrupted the Auckland Energy Consumers Trust AGM and required the unsuccessful intervention of security personnel. Those who did not realise Stiassny was in the room had their attention directed to the man wearing the dark business suit and the
'Dumb-and-Dumber' haircut sitting to one side of the room. Stiassny was then whisked from the building by Vector staffers.
The AECT was the 100% owner of Vector Limited until Chairman Stiassny led a 24.9% sell-off in the form of a public share offering on the NZX exchange in August 2005. The need to pay down Vector's ballooning $3.15 Billion debt ? in part a result of its contentious acquisition of NGC the year before ? was cited at the time as a primary reason why the public equity float was necessary. Yet only 2% of the debt was ultimately paid down after the successful 25% share float.
Mr. Stiassny has been publicly claiming he grew Vector from a $1 Billion company to a $5 Billion company in 3 years. At the Auckland Consumers Trust AGM much of the controversy was directed at Vector's claim that assets had appreciated 17.9% in the last fiscal year and that nearly $1.7 billion (or 30%) of Vector's current valuation was in the form of "goodwill". As a comparison, Vector's valuation of its goodwill is now roughly equivalent to the goodwill of the
Coca-Cola Companies at US$1.2 Billion.
MANY LEGAL ISSUES LOOM IN DISTRICT LAW SOCIETIES' FINAL DAYS
Dateline: 1 June 2007
When the 14 District Law Societies in New Zealand become absorbed into the New Zealand Law Society in 2008, it will close the book on these legal fiefdoms that often conflicted in their approaches, exploited regional differences and largely failed in their mandates to the public to enforce a consistent code of conduct among lawyers due to the incestuous professional relationships that plagued these local chapters. Such a haphazard and unreliable framework had been long-recognized by the Government to be the bane of a respectable and efficient Bar.
By passing the
Lawyers and Conveyancers Act 2006 the New Zealand Government has taken an important step in establishing a central authority removed from the influence of individual lawyers who often used the district societies to reward friends and, conversely, settle scores. As one example of this, the Auckland District Law Society aggressively protected Society-prominent Auckland lawyers such as the deceased Robert Fardell QC and Grant Illingworth QC against extremely serious breaches of the law and legal ethics, while at the same time spending many hundreds of thousands of dollars to chase the colourful and hard-living erstwhile barrister Christopher Harder over many years because, in part, his unpolished approach offended the sensitivities of those in charge. A national body is regarded by the government as providing some protection against misuse of powers and assets on local levels. While district law societies are allowed to continue as incorporated entities under the Act the lack of mandatory membership provides a strong financial catalyst for districts to amalgamate into and operate within the 'One Society Plan' which is being circulated.
A discussion paper on the subject put out by the Auckland District Law Society lucidly identifies the problems that were inherent in the old structure. It states,
"The current law society structure is cumbersome and unwieldy. Each district law society operates independently and there is minimal communication between NZLS and district law societies and even less between districts themselves. There is no facility or organised management structure to promote communication, sharing of ideas and issues or to create efficiencies in compliance costs or administration. The structure is not conducive to creating a climate of mutual trust and community of spirit. Nor does it take advantage of any efficiencies or cost savings that might be achieved by streamlining functions on a national basis."
The ADLS is the largest district society by far with a staff of 53 and membership roster of some 4,000 lawyers. It also has substantial assets, including a building valued at $10 million in the Chancery section of downtown Auckland. According to the Act, these assets automatically become the assets of the NZLS at the time the district societies are dissolved. This has resulted in a petition being filed this week by Whangaparaoa solicitor Dennis Gates asking that the building be sold and the proceeds distributed among the members prior to dissolution of the ADLS. This would result in each lawyer receiving approximately $2,500 if Gate's petition is put to a vote and acted on.
The other significant asset is the law library, of which each district was required to provide. There appears a general consensus the law libraries should be retained at the local levels after the districts are folded into the NZLS, with three main libraries operated in Auckland, Wellington and Christchurch.
The Act removes statutory responsibility for regulatory functions from district law societies and places all responsibility with the NZLS. Under the current plan, district law societies would continue to perform the regulatory functions on contract to the NZLS. How those contractual arrangements would work in practice has yet to be defined. It is expected that the NZLS would need to introduce a national standard for the performance of all regulatory functions in short order and district law societies would be required to adhere to those standards. In addition, the Act requires a strict separation between the funding of regulatory and representative functions and introduces new regulatory requirements, particularly around the handling of complaints, the extension of Standards Committee powers and responsibilities, and the requirement to deal with complaints about client care issues.
AUCKLAND CITY CEO RANKIN REFUSES OIA REQUEST ON $91 MILLION SPENT FOR CONSULTANTS AHEAD OF ELECTION
17 October 2007, Auckland
The disclosure in August that Auckland City spent $91 Million on 'consultants' over the last three years has taken a nasty twist with the revelation that Auckland City CEO David Rankin has failed over six weeks to respond to an Official Information Act Request by erstwhile Auckland Mayoral Candidate Lisa Prager.
Ms. Prager wants to know specifically the amounts attributed to the 'contracting out' of the 64 services provided by Auckland City Council. The consultancy fees amount to $200 for every man, woman and child living in the city.
The public revelation of this staggering expenditure in August caused considerable angst among many councillors, coming as it did ahead of the local body elections that close this weekend. CEO Rankin's employment contract is now being reviewed by the City as a result of what many councillors claim was knowledge they had not been privy to. Mr. Rankin's actions in failing to respond to Ms. Prager's request is viewed as a transparent attempt to deny the voting public this useful information ahead of voting. This week Ms. Prager was assisted by the
Water Pressure Group, a private watchdog group, filing a formal complaint with the Office of the Auditor General over the alleged obstruction of public financial information by Mr. Rankin.
Even without this information, the disclosure has dealt a significant blow to Mayor Dick Hubbard's re-election campaign.
This drama follows a raucous Auckland City Council meeting held Thursday night, 23 August 2007, at Town Hall that had Mayor Hubbard slapping the air with his hand in a persistent attempt to maintain order, City Councilors sparred angrily over whether the Business and Corporate Finance Committee chaired by Cr. Vern Walsh was sandbagging the extent of the City's exposure on leaky building damage claims ahead of local elections in October. Public sentiment was strong that elected officials were not providing adequate disclosure of the known financial risk. Possibly as a result of this sentiment, Crs. Armstrong and Scott Milne sought a ruling to advance the issue as an extraordinary matter of business, thereby putting immediate pressure on the F&CBC chair to provide full financial disclosure to the full council. Mayor Hubbard and former deputy mayor Bruce Hucker joined Cr. Walsh in a futile effort to defer the issue, saying the normal course already set would provide complete results within three weeks. Tensions reached a peak when Cr. Walsh responded that Cr. Armstrong's allegations were 'bordering on lies', a statement he was forced to retract after Cr. Armstrong took exception to the remark and Walsh sought but failed to get support from other councilors. As to Milne, Walsh accused the councilor of cheap electioneering in the lead up to the election.
The leaky building issue has been a known source of significant financial exposure to councils that provided codes of compliance on buildings constructed with untreated wood for many years, but has become more pressing because the 10 year statute of limitation - and hence the greatest number of damage cases - is quickly approaching. Major building code changes some eight years ago prohibited the use of untreated wood when widespread rot began to surface in new construction.
The Council adjourned deeply divided, with the Mayor urging patience and trust in the F&CBC providing the actuarial figures as quickly as they become available.
Until this heated debate, it appeared the major drama would be over the Mayor's refusal to allow speaking rights to Ms. Penny Bright of the Water Pressure Group. In a move that minimally ranked as nonsensical, the Mayor refused to allow Ms. Bright the customary 5 minutes, choosing instead to cause a major spectacle and delay of 35 minutes to the meeting by calling a temporary adjournment when Ms. Bright forcibly took the visitor's podium to address the City's ongoing policy of assessing 'charitable contributions' to water-users bills in order to fund other city services and tacking on surcharges for storm water based upon water usage. Mayor Hubbard asked the police to arrest Ms. Bright for trespassing, but responding officers refused to do so. Instead, two police constables sat behind Ms. Bright the rest of the meeting. It was little wonder then that the full council was a little irritable after the long and unnecessary delay. # BACK TO FRONT PAGE
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.
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
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.
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 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.
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
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.
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
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.
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.
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 cafÃ© 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.
LEGAL AID IS AN ASS
14 April 2011
The New Zealand Government announced this week the legal aid budget will be drastically cut and a new income limit of $22,000 annually means people earning below the minimum wage may not qualify. In addition, people are being discouraged from applying for legal aid, with a new $100 fee charged in civil cases.
This follows initiatives last year by Justice Ministry to eliminate choice of counsel for all but the most serious offences, a proposed Bill limiting defences to those declared ahead of hearing, and new court rules requiring plaintiffs not on legal aid to pay the defendant's legal costs into court before they are allowed a hearing.
Justice Minister Simon Power has stated that legal
aid is taxpayers' money and it ought not be spent this way. The idea is being called draconian by the legal community, but it is not new. A certain Chancellor had the same common sense arguments implemented in bringing Germany to greatness in the 1930s.
In contrast to the $120/hour legal aid lawyers will
not be getting, disgraced Supreme Court Judge Bill Wilson had his $1,000/ hour lawyer sucking off the public tit - the government announcing months ago that Wilson's $475,000 legal bill would be paid by taxpayers after the judge resigned amid allegations he presided in favour of his business partner and bank when on the Court of Appeal in 2007-2008.
Several government Ministers, including former Prime Minister Helen Clark and National Minister Nick Smith also received taxpayer handouts for lawyers.
It seems judges, ministers and the unemployed are the only ones now allowed legal aid in New Zealand.
SUPREME COURT BUILDING WORSE FOR WEAR - AND EXPENSE
11 April 2011
The weathered exterior and grimy interior belie the age of the New Zealand Supreme Court building at
Ballance and Lambton Quay in Wellington. The intricate bronze outer lattice which quickly prompted the building's nickname 'birds nest' is already resembling an actual birds nest after little more than a year open. Before visitors can reach the counter where brochures promote tours of the judicial palace, they are distracted by tarnished copper brocades which ornately cover the exterior wall to the solitary court sanctum.
It is not the appearance one would expect from a building which was the venue for only 36 hearings in the last year (12 criminal, 24 civil) and cost the taxpayers $100 million to construct.
As Christchurch looks to rebuild, the significance of such a wasteful expenditure of tax revenues strikes home.
Only 13 years ago a petition signed by 200,000 Kiwis stopped the government from spending $100 million for a new Ministerial building. Lessons learned? In a way, yes. Stealth prevented public input into this monument to 5 judges' egos. This stealth now extends to subterfuge as to the true ongoing costs.
Based upon an annual budget of $2,658,495 through 30 June 2010, which included $942,282 for staff and $149,099 for travel/meetings, but not $3,700,000 paid out in judge salaries and perks, official annual expenses exceed $6.3 million. But rent is recorded as $150,652 annually; virtually nothing considering the building's cost. At a more reflective rental return of $6.5 million, and factoring in only 50% of the Supreme Court judges' salaries (they do dismiss some applications without hearing), the cost per hearing to New Zealand taxpayers is a staggering
When one considers the Privy Council was a user pay system which cost the taxpayers nothing, learning the daily cost in the Supreme Court palace is more than to rebuild a Christchurch home really strikes home.
ALL IN THE FAMILY
30 March 2011
Suppose you awoke one day to find that by executive decree all but a couple of the 122 Members of Parliament were to be white Anglican, horse breeding lawyers who mix in the same tight social circles and whose priority is security of their possessions. If after they met the new Members passed a multitude of laws stating immigration is restricted to Europe and North America, horse breeders are exempt from paying taxes, the Northern Club is granted exclusive use of Albert Park for a new party facility and carpark and theft of property is now punishable by death, would this amount to a conspiracy on its face?
The answer is "No". It is human nature for people to make decisions which are rooted in self-interest. They do not need to collude to promote interests they share. The actions might further be considered egalitarian if the members were a mirror image of New Zealand and their actions were reflective of the mores of society. That non-horse breeders are left to pick up the tax burden, Albert Park users no longer have that enjoyment and NZ citizens from South America and Asia cannot have family members join them becomes merely a casualty of the balancing exercise where societal interests conflict.
The problem in a democratic and just society of course is if the decision making process appears arbitrary, is not transparent, subverts societal mores and benefits a privileged few at the expense of society on the whole.
It is inconceivable a democratic nation as diverse as New Zealand would accept the reins of power being vested in this parochial oligarchy. What few realise is that this has become the adopted model for the judicial branch of government since the loss of the Privy Council as the final appellate court in 2004. There is little diversity among New Zealand High Court judges, which includes Court of Appeal and Supreme Court judges. Only three were born off shore (all England) and two are Maori, although you could not tell by looking at them. If they all look like family, it is because they largely are. There are many cousins and even a husband and wife (
Ellen France). The great majority are former Crown lawyers or children of past judges. It is not a conspiracy that they have a hard time recognizing white collar crime and the civil rights of individuals considering their privileged backgrounds and cloistered environs. If the Chief Justice has substantial shares in the state carrier, and the state carrier has been particularly kind in providing service and holidays to just a few of her judicial colleagues, it does not require a conspiracy for the appellate court to uphold a court verdict which had seemed a straightforward breach of antitrust laws. That the presiding judge alone controls the official record of what occurred helps to keeps things tidy.
That this is a huge problem for New Zealand was evident in the snickers from the business community to the announcement of PM John Key's futile dream that New Zealand become a financial hub along the line of Singapore. Even if the public are shielded by the shroud of secrecy which pervades many NZ court proceedings, business people with money to invest make it their objective to look at the economic and legal playing field. If the laws are found to not be equitably applied, investors want to at least know what the bribing regime is for judges. The problem for New Zealand is that while businesspeople see judicial decisions inconsistent with law and fact, they are told corruption of judges does not exist. They are left bewildered when a distinguished judge such as
Susan Glazebrook on the Court of Appeal states from the bench she is not interested in whether a party has submitted fraudulent documents to the Court, refuses to look at the evidence this is so, relies upon the deceptive documents in support of the reserved judgment, then suppresses the court record.
Everyone now knows that after the Privy Council roundly chastised the New Zealand Court of Appeal for systemic legal abuses in
Taito v R, Attorney General of the day Margaret Wilson led a coup to shoot the messenger and appoint the very Court of Appeal judges who were guilty of a homegrown brand of selective lawlessness to New Zealand's new court of last resort. What little judicial diversity - and redress - New Zealand offered before effectively evaporated.
One upshot of this incestuous consolidation of judicial power is that, in contrast to the United States or other Commonwealth countries, there is little realistic expectation that litigants in New Zealand will get an arm's length and fairer legal shake at the appellate court. Aside from appointing judges from a small social subsection in this land of 4 million people, the revolving door nature of the appellate court routinely has judges from the High Court sitting in judgment on the Court of Appeal and judges on the Supreme Court reviewing appeals of decisions they made when on the Court of Appeal.
Public ignorance of the nation's judges who exercise unbridled power is by design. The obscure selection process extends to the austere announcements of each appointment, ordinarily little more than a 100 word blip of tantalizing PR put out by the Attorney General. Court proceedings themselves are often black holes of information. Unless our desire to know who these people are and what they are doing forces a modicum of transparency, we have not learned the lessons of history.
9 February 2011
There is increasing pressure by human rights advocates for the New Zealand Court of Appeal President to cease "stacking" benches for hearings. This follows recent UNHRC minutes admonishing the practice on the heels of recent revelations that erstwhile Supreme Court
Justice Bill Wilson dispensed judicial favours benefitting his business partner, Alan Galbraith QC, and his mortgage holder, Bank of New Zealand, while on the Court of Appeal.
By custom, current Court of Appeal president (
Mark O'Regan) personally selects the panel to hear appeals. The practice allows the president to potentially influence the result of appeals by picking judges predisposed to his thinking on pet issues.
The Court has a long history of the suspect practice. Long after Robin Cooke of Thorndon became a law lord of England after complaining the Privy Council was overturning too many New Zealand decisions and must therefore be done away with, he exercised his power as President of the NZ Court of Appeal to stack the bench
It eventuated that even the farmers and teachers in Parliament of the day had had enough.
Brighouse v Bilderbeck appeal was the catalyst. After Cooke P stacked the Court of Appeal bench by calling Sir Gordon Bisson out of retirement and appointing compliant judge Sir Maurice Casey along with him, the majority was assured. Many prefer to remember Lord Cooke's legal brilliance rather than his evident parochialism. This blinkered approach has allowed the practice he embraced to live on despite Parliament restricting the appointment of acting judges after the Brighouse judgment.
In a March 2009 bulletin, the United Nations General Assembly called upon member states to
"create a mechanism to allocate court cases in an objective manner". New Zealand has appeared to ignore this.
One option open to lawyers to mitigate the influence of selective bench appointments on appeal is to request a full bench of five judges in certain appeals. However, lawyers are reticent to do this in New Zealand because judges frown upon it, and even ignore such requests.
One recent case was CA371/2010
Ruka v Queen. Appellant's counsel made a formal request for a full bench. When no response came, counsel filed a memorandum to the Court President. Astonishingly, the President only then issued a Minute, on 21 October 2010, stating the request had been denied via a handwritten notation placed on the Court file. The parties were not shown the courtesy of being informed, let alone provided any reasons for such refusal.
It judicial actions such as these which circulate quickly through the New Zealand legal community, providing inauspicious warnings to lawyers considering their clients' legal options.
In the Ruka appeal, O'Regan P was ultimately compelled to provide reasons for his decision not to appoint 5 judges. Unfortunately, the reality is compelling a New Zealand judge to give reasons can be problematic when it comes to that lawyer earning a living in the future in a nation of four million people where so many of the sitting judges are related to, or in business with, one another.
PERSECUTE WHERE LAW PREVENTS
18 December 2010
Urewera raid defendants are lining up to appeal Auckland High Court Justice
Helen Winkelmann's Judgment that potential jurors would use "improper reasoning processes" and, therefore, a judge-alone trial is necessary when trying the fifteen defendants. It is understood most of the defendants have already signed up to an appeal to be filed with the Court of Appeal in late January.
Meanwhile, Crown Law has sent
notice that it intends to prosecute
kiwisfirst publisher Vince Siemer for publishing Winkelmann's judgment, on the grounds Winkelmann ordered the public not be told about it. Crown Law is seeking Siemer be imprisoned.
The threat to prosecute comes despite Meredith Connell
advising the High Court and Crown Law that they intend to seek rescission of all suppression orders on behalf of the prosecution on the grounds publication of Winkelmann's judgment
"cannot possibly prejudice the fair trial rights of the accused, and (the issues in the judgment) are a matter of genuine public interest."
JUDGE OR BE JUDGED
10 December 2010
Chief High Court
Judge Helen Winkelmann (pictured) ordered yesterday that the "Urewera terrorist" prosecution
(R v Bailey) against 15 accused will be by judge alone trial. The landmark ruling was sought on application by the Crown and had been opposed by the accused.
The remaining three of the eighteen listed defendants were ordered separate trials.
Winkelmann J ordered the public not be told about her order. In the past Winkelmann has stated the reason for such secrecy was to ensure the jury pool is not prejudiced by pre-trial information. Her latest order prohibiting a jury states the potential length of the trial, or that jurors would use "improper reasoning processes" , each provide a sufficient ground for denial of jury trial in her mind.
In responding to the defendants' assertion the
Bill of Rights Act 1990 ensures the right to elect trial by jury when facing more than 3 months prison, Her Honour stated the Supreme Court declared last year in
Wenzel v R that barring a jury trial did not violate the Bill of Rights Act. The Supreme Court reasoning in
Wenzel v R was that judges are as fair as juries, even though the Bill of Rights guarantee to jury trial is not founded on contrary reasoning.
R v Bailey accused were originally charged under the
Terrorist Suppression Act. After widespread public protests, Solicitor General David Collins dropped the terrorism charges in October 2007. Most are now charged with arms violations: some with organised crime activity.
Justice Winkelmann was the Judge who earlier concurred with Police that their Court affidavit used to obtain the nationwide search warrants in the massive arrests be suppressed, then revoked bail on Crown application after Auckland District Court Judge Josephine Bouchier granted bail for some of the accused in 2007. In 2009, Justice Winkelmann struck out several of those search warrants as unlawful. Last month, the Court of Appeal reinstated them after the Crown appealed.
Winkelmann's ruling yesterday means the eighteen originally charged wrongly by the Crown as terrorists will now have their guilt or innocence determined by a Crown judge, as the Crown is being forced to justify its actions in the raids to the Unitited Nations.
The arrests were the culmination of a 13 month and multi-million dollar covert police investigation in 2007 which made news headlines around the world.
CONVICTED FRAUDSTER HEADS NEW ZEALAND LAW SOCIETY
29 October 2010
A former District Court Judge convicted of 8 charges of fraud has been appointed to the Complaints Committee of the New Zealand Law Society. Mr Robert Hesketh (pictured) fled
the bench and was struck off as a lawyer after his 1997 criminal conviction. He will now sit in judgment of New Zealand lawyers who are the subject of complaint for alleged unethical conduct.
The revelation has turned heads in a Law Society accustomed to unconventional appointments.
Lawyer-turned-non-lawyer-turned lawyer-again Duncan Webb jumped from Law Society Committee Member three years ago to become "Lay Observer" over Law Society complaint appeals. Mr Webb was caught-out practicing without a certificate after abruptly leaving this lay post in January 2009. Three parties filed complaints against Webb. The Law Society responded by refusing to open a file in relation to Mr Webb practicing law without a licence, claiming they had no jurisdiction over "non-lawyers" even though their former committee member was claiming to be a partner of Lane Neave in Christchurch. Mr Webb was granted his practising certificate a week later.
CHIEF HIGH COURT JUDGE RETALIATES
6 November 2010
In a case for the annuls it has surfaced that Chief High Court
Justice Anthony Randerson (pictured) conducted his own investigation in 2009 and recommended the New Zealand Law Society consider "disciplinary action" against two Auckland barristers.
The case is unique because judges are not empowered to conduct investigations - and
certainly not of their own volition - against lawyers.
In a letter dated 18 December 2009, then-Chief High Court Judge Randerson sought NZLS President John Marshall QC take disciplinary action against Barristers Evgeny Orlov and Frank Deliu because each complained about his fellow
judge Rhys Harrison to the Judicial Conduct Commissioner.
Randerson offered no specifics other than to say the lawyers' complaints were dismissed by then-JCC Ian Haynes, suggesting this indicated the lawyers had suspect motives.
Haynes fielded almost 400 complaints against judges in his 3 years as JCC. None were deemed worthy of a formal investigation. Four were referred to the Head of Bench. As Chief Judge, Randerson was the recipient of such referrals against High Court judges. This supervisory judicial role raises additional conflict concerns of Randerson's complaint to the NZLS. The targeted lawyers see it as an overtly oppressive warning to other lawyers not to complain.
The NZLS, which could not legally open a complaint on the ethereal allegations of Judge Randerson, nonetheless stated its immediate intention "to commence an investigation of its own motion in relation to the concerns raised" by the judge. It is understood that the NZLS has since informed Mr Orlov that they intend to prosecute him. A similar decision in respect to Mr Deliu is expected within days.
When first informed of the complaint, Mr Orlov responded to the Chief Judge and the NZLS. To the Chief Judge, Orlov expressed "greatest respect for you as a judicial officer", then requested by what authority the Chief Judge had conducted his investigation and recommendation - asking specifically what documents Randerson based his disciplinary recommendation upon.
Justice Randerson did not respond. The Chief Judge further refused to consider Orlov's request, supported by the JCC, that he bar Harrison J from presiding over Orlov's future cases.
From the NZLS, Orlov sought clarification on what he called the "unprecedented" action to prosecute him, asking "What in fact I am alleged to have done or not done."
The NZLS failed to respond with specific allegations.
Messrs. Orlov and Deliu both expressed surprise that raising professional concerns about a judge through proper channels had singularly made them subject of a disciplinary recommendation by that judge's superior.
Deliu has taken it a step further, filing a pre-emptive Bill of Rights claim against the Law Society in the Auckland High Court. In his claim Deliu asserts that taking disciplinary action against him merely for complaining about a judge to the JCC is political oppression of free speech. He notes the Law Society's prosecutorial powers are largely confined to regulated services (an exception being if the lawyer robs a bank on his free time) and there is no suggestion the Law Society's pursuit of him relates to his conduct as a lawyer or any criminal offending. Deliu told kiwisfirst he was initially reticent to make comment which could be construed as provocative, but then offered
"As an officer of the Court, I am obliged to raise concerns I have about a judge."
29 October 2010
The question of what might have been is a hot topic among the legal fraternity when it comes to
Supreme Court Justice Bill Wilson resigning in disgrace last week. Could he have weathered the storm? Was justice denied when his resignation put a halt on the inquiry into his judicial conduct?
It is a moot point now that Wilson has received a $1.0 million golden parachute from the NZ taxpayers to resign.
Yet the drama has no appearance of abating, and increasingly Wilson is looking like the pitiful Willy Loman from
Death of a Salesman - as evidenced by his two interviews in the
Herald on Sunday. If only the world could see how great and honourable he sees himself.
In the two full page-dominating interviews, the variously smiling and smug defrocked judge professes to be the martyr. The reader is left unaware that $475,000 of Wilson's taxpayer payout went to the lawyer-husband of the reporter doing both interviews. That lawyer, Colin Carruthers QC, was Wilson's counsel for 4 ½ months. During that time Carruthers spent more time doing media interviews professing the judge's innocence than he spent in court. Nonetheless his wife chose to paint the judge as left twisting in the wind, abandoned by those who should have spoken up for him. One of those is Acting Attorney General Judith Collins, of whom Wilson angrily laments
"she never spoke up for me, and that is her role because a judge can't speak for him or herself".
TRANSPARENCY NZ HAS ANTI-CORRUPTION ADVOCATE ARRESTED
11 December 2009
In a stinging irony, Chairman
Gerald McGhie of
"autonomous" New Zealand chapter ordered Police to arrest public watchdog
Penny Bright (left) for trespassing at its Annual General Meeting on Wednesday. This was despite the government-funded not-for-profit lauding her in its newsletters as an "anti-corruption campaigner". Inauspiciously, attendees were also given pamphlets with the bold heading "CORRUPTION RUINS LIVES - FIGHT BACK".
FULL STORY LINK
RULE OF LAW CONFERENCE EXPOSES FAILURES IN NZ COURTS
9 November 2009
Australian High Court Judge Dyson Heydon spoke recently to a group of about 180 New Zealand academics, lawyers and Judges about maintaining the rule of law and the greatest threats to it. The day long conference, which included speeches by Attorney General Chris Finlayson and Solicitor General David Collins, was sponsored by the
NZ Legal Research Foundation and held at the Auckland Hyatt.
The 66 year old Judge Heydon was born in Canada and spent his youth in New Zealand, before becoming a distinguished Judge in Australia late in life after a successful academic career. What he had to say created palpable concern among many who attended, although it was far from the intent of Judge Heydon to make his New Zealand audience uncomfortable. Notable in attendance were
Supreme Court Chief Justice Sian Elias and her fellow
Supreme Court Judge Peter Blanchard (who acted as conference Chairman).
Judge Heydon opened by stating "order" was not the same as "law and order". He went on to caution
"totalitarian regimes are characterised by retrospective laws, extensive executive discretion, secrecy, obscurity, rumours of laws rather than actual laws, and instability. Above all, citizens subject to totalitarian rule find it impossible or very difficult to get before competent, determined and independent judges."
HIGH COURT SUPPRESSES PUBLIC COURT RULING
[**censored by the new zealand government**] IN 2007 'TERRORIST' RAIDS
24 September 2009
*Solicitor General threatens prosecution for publishing this public Court ruling* Judge demands that the Court ruling be kept from the public
17 September 2009 Link to
JUDGE LANCE'S OFFENDING WAS HIDDEN BY PROMINENT NEW ZEALAND JUDGES FOR YEARS
8 September 2009
Judge Michael Lance was criminally charged with willful damage last month in the North
Shore District Court. But
kiwisfirst has uncovered a pattern of previous offending by the Judge over many years. Learn how current
Independent Police Complaints Authority
Justice Lowell Goddard
(pictured with Lance) and current
NZ Supeme Court
Justice John McGrath concealed appalling evidence of extortion and likely criminal conduct by Judge Lance fiteen years ago.
The Meteoric Rise and Fall of Supreme Court Justice Bill Wilson
5 August 2009
Kiwisfirst confirmed this week that
Supreme Court Justice Bill Wilson violated longstanding law when he continued to run his private horse breeding company after his appointment to the Court of Appeal. Moreover, he used his judicial title to promote his company. Section 4(2A) of the
Judicature Act prevents a judge from undertaking any employment or hold any other office, whether paid or not, unless the Chief High Court Judge is satisfied that the employment or other office is compatible with judicial office.
IAN HAYNES RESIGNS AS JUDICIAL CONDUCT COMMISSIONER
21 July 2009
New Zealand Judicial Conduct Commissioner Ian Haynes abruptly resigned last week after 4 years at
the post. Mr Haynes was appointed the country's first Judicial Conduct Commissioner for a three year term in 2005, but stayed on after his term expired. His resignation comes as a shock to New Zealand's legal community. Parliament is working to find a replacement. Attorney General Chris Finlayson has put the name of
David Rendal Kingston Gascoigne of Wellington before the House for a 5-year term. The vote is tomorrow.
Mr Gascoigne (right) is a NZ lawyer, as well as a director and consultant to a host of New Zealand's largest businesses. If
approved, the recommendation will require the perfunctory approval of the Governor General. The job reportedly pays $90,000 annually.
Judicial Conduct Commissioner Act 2004 requires the Commissioner continue until his successor is appointed, Mr Haynes left the country on 10 July 2009 and resigned two days later. His office stated today he is no longer available to deal with complaints against New Zealand Judges for alleged misconduct. The discrepancy between Haynes' resignation and the requirement of the position could not be reconciled by his secretary other than to say Mr Haynes had expressed his intent to resign some time ago.
SUPERCITY HEIGHTENS CONCERNS OF CONTRACTOR FINANCIAL ABUSES
7 July 2009 Local community oganisations raise concerns over responsiveness and expense of Super City amalgamation. $50,000 footpath is but one example.
Oops, HE DID IT AGAIN
28 June 2009 (updated)
Now that the David Bain murder retrial has ended in the fashion those most informed with the case suspected, recriminations for the public waste of $4 million and valuable court resources have begun. As with the 'Tuhoe terrorist' prosecution debacle in October 2007 and the Gwaze murder trial in May 2008,
New Zealand Solicitor General David Collins is at the centre of the storm.
Defence lawyers did not pull any punches after the Bain 'not guilty' verdict earlier this month. They alleged official pressure trumped logic in the decision to go ahead with the expensive retrial.
The Privy Council quashed the previous conviction in May 2007. Then confident S-G David Collins wasted no time in ordering the retrial a month later (of the 14 year old murders of Bain's immediate family). That haste was to reflect a much broader professional and personal recklessness which has dogged his short tenure as New Zealand's Solicitor General.
After George Gwaze was acquitted last year of murdering his niece - in another prosecution by Collins' office - Collins criticized the Judge's handling of the trial. The criticism so incensed two jurors that they came out to say the Crown could not even establish the cause of death at the trial.
Both these cases followed the massive Tuhoe terrorist raids and the resultant arrests without bail. In that case, Collins was forced to reverse his decision to pursue terrorism charges after large public protests exposed his misguided prosecution. Putting some spin on his U-turn at the time, Mr Collins stated the charges were dropped because the
Terrorist Suppression Act was poorly written. This begged the question why he had not properly read the relevant legislation before approving the rounding up of 17 New Zealand citizens a month earlier. Despite the resultant embarrassment to New Zealand, Collins' poor judgment was largely hidden.
Mr Collins himself has been the subject of two police criminal investigations in the past year. A perjury charge - relating to a false affidavit he submitted to the New Zealand Court of Appeal on 11 May 2007 - could have landed him as much as two years in prison, but the
Police investigation dismissed the evidence last February on the basis they could not determine the "reasons" Collins submitted the substantively untrue affidavit to the Court.
In March, after extensive meetings with government lawyers, TVNZ
Sunday Programme decided against running a segment concerning three cases of alleged misconduct by David Collins as New Zealand Solicitor General. #
A JUDGE'S WRATH
27 April 2009
Judge Michael Lance QC (left) is under criminal investigation for allegedly vandalising the car of Auckland businessman Richard Cummins. The incident happened on 23 March 2009 in front of the Judge's apartment block in Browns Bay, Auckland. The crime was witnessed by two patrons at a nearby café and resulted in $4,000 damage to the vehicle. A total of 21 deep scratches were "keyed" into various panels of the car while Mr Cummins was in a business appointment nearby.
WHISTLE-BLOWING GREATER CRIME THAN NEGLIGENT HOMICIDE ACCORDING TO NZ JUDGES
21 March 2009
How out of touch are New Zealand Judges? Consider the contrasting cases of the Sir
Edmund Hillary Outdoor Pursuits Centre tragedy resulting in the deaths of 7 people against three recent cases of whistle-blowing by conscientious New Zealand citizens.
WHAT'S WORSE THAN BEATING A DEAD HORSE?
5 March 2009
Three years ago former police prosecutor and current private investigator Grace Haden, operating on a tip, questioned the subsistence of the
Animal Welfare Institute of New Zealand (AWINZ ). It was disclosed to Ms Haden that AWINZ was paid handsomely to lend its name to the movie credits of
Lord of the Rings, attesting that no animals were harmed in the making of the movie. Beyond the mystery of what AWINZ actually was, the reality was that AWINZ 'officers' were on set less than 25% of the animal action time. Haden's source informed her that a horse named Moon was sent to slaughter after non-specified problems with its front legs. Three other horses reportedly died during shooting.
TRANSPARENCY INTERNATIONAL INVISIBLE IN NEW ZEALAND
12 February 2009
Located in a obscure closet office on the fourth floor of an old department store in Wellington is an 'independent' New Zealand lobbying and fundraising arm of the 15 year old private not-for-profit
Transparency International, based in Berlin
. But if you try to find out anything about them, you better be a good investigator. We tried our best and came up with some interesting background and contradictions.
READ FULL STORY
JUDGE COOPER'S RACIST INVECTIVE TAINTS HIGH COURT RULING
1 January 2009
Under cover of the Christmas Holiday, Auckland High Court
Judge Mark Cooper (right) ruled that
kiwisfirst editor Vince Siemer had defamed Auckland insolvency accountant Michael Stiassny with publications on this site and (
website name blocked by order of the Court). Siemer was ordered to pay $920,000 damages to Stiassny, plus unspecified Court costs.
Cooper's 23 December 2008 judgment finding Mr Siemer guilty of defamation followed a 'formal proof' trial conducted sometime in October. Mr Siemer was debarred from defending himself at that trial because he refused to pay application costs totaling more than $200,000 which
Justice Judith Potter had awarded Stiassny ahead of trial. A Jury trial was earlier denied by order of
Justice Rodney Hansen at the request of Stiassny's lawyers on the basis New Zealand citizens were incapable of understanding the complex nature of the defamation alleged against Mr Siemer by Mr Stiassny.
It is understood that Stiassny and an employee of Korda Mentha (formerly Ferrier Hodgson) Alan Garrett, walked into an Auckland Courtroom in October and told Judge Cooper the sad story of Stiassny having to tell his children that he did not do any of the things which had been evidentially detailed on (
website name blocked by order of the Court) in April 2005. Testifying his side of this bizarre 3 1/2 year-long legal escapade, Mr Stiassny told the Judge he had spent over a million dollars in legal costs pursuing Mr Siemer and that everything Mr Siemer published about him were lies which had been previously investigated by the Serious Fraud Office and Institute of Chartered Accountants and found to be baseless. No reporters or public were present at this cosy meeting. No record was apparently taken.
The undefended trial was the first time in the long court battle that Michael Stiassny had appeared in Court. His appearance came after the Judge provided assurances that Mr Stiassny would not be cross-examined on his testimony. Judge Cooper thought it best that Stiassny not be further traumatized by suffering the indecency of having his answers challenged in respect of the professional transgressions alleged by Mr Siemer. These allegations were that Michael Stiassny wrongly attempted to label Paragon Oil Systems Ltd insolvent in 2001 - at a time when the company was flush with cash and had no fixed debt - and had attempted to overcharge Paragon some $10,000 in fees, an overcharge which was thwarted when Managing Director Vince Siemer refused to sign off on payment.
Perhaps the strangest aspect of the case is that both allegations were earlier proven to be correct in Court - using Stiassny's own documents - yet Judge Cooper failed to address any of this evidence in his lengthy
25 page judgment.
The "official" summary of the events and trial lies in the often acerbic words of Justice Cooper's judgment, demonstrating how serious the Judge considered the defamation to be. In paragraph  of that judgment Cooper quoted what he later referred to as
"clear instances of vile racist abuse [by Mr Siemer]". In an apparent quote of Mr Siemer, Cooper J stated -
"Mr Siemer had referred to Mr Stiassny as a man with "exceptional sway within the small Jewish community" and had commented that "when the judiciary determines that a ruthless and powerful man's reputation is so priceless...the Gestapo cannot be far behind...people like Adolph [sic] Hitler....".
The big problem is that Mr Siemer made no such racist remarks. Justice Cooper simply took words from unrelated articles, juxtaposed them, then attributed the resultant fictitious quote to Mr Siemer.
Because it breaches a Judge's order to refer readers to the actual website which contains the articles which Justice Cooper selectively pulled words from, the relevant sections are printed below.
In one article which tracks Michael Stiassny's questionable relationship with Robert Fardell QC prior to Mr Fardell's suicide in December 2005, Mr Siemer actual wrote -
"Stiassny, the man (Fardell) had inextricably linked himself with, a man with
sway within the small Jewish community and certain sectors of the business community, had spurned his pleas for help."
An unrelated interview posted on the site had Mr Siemer answering the question "
Can you really argue with Judge (France's) decision that one cannot put a price on Stiassny's reputation whereas the only thing you have lost is your expenditures on the billboard and website?"
To which Mr Siemer answered:
"Are you kidding?! The hearing was the same week as Anzac Day. Those gallant men and women who paid the ultimate price for freedom would roll over in their graves to learn that a High Court Judge played truth police while quashing freedom of expression.
When the Judiciary determines that a ruthless and powerful man's reputation is so priceless that any evidence and experiences that he claims undermines it must be purged and banned,
the Gestapo cannot be far behind. I am not being over-dramatic. Erosion of civil liberties is notoriously unremarkable as it is occurring. If history has taught us anything it is that
people like Adolph Hitler, Idi Amin, Saddam Hussein and Pol Pot succeeded in committing horrendous crimes only through purges of public opinion that conflicted with the reputation they sought to promote."
Judge Cooper's "quote", which he attributes to Mr Siemer, is compiled from the words highlighted in the actual publications (above). This example gives a small glimpse into how justice is regularly arrived at in the parochial New Zealand Courts. New Zealand Judges know that because of the small subscriber base in New Zealand for the legal reporting clearinghouse
Lexis Nexis relies solely on judicial summaries when reporting court decisions.
NATS SET TO REPLACE DENTAL NURSE AND HISTORY TEACHER AS MINSTER OF JUSTICE AND ATTORNEY GENERAL
9 November 2008
The National Party trounced the Labour Party government in elections yesterday with 46% of the vote to Labour's 33%. National Party Leader John Key moved quickly to secure the support of the Act Party and United Future before giving his acceptance speech last night. Mr Key will now be the new Prime Minister.
Top on the list on National's many priorities is the replacement of Justice Minister Annette King and Attorney General Michael Cullen. Neither incumbent head has a law degree. National is expected to replace King with Rangitikei Solicitor Simon Power and Cullen with Wellington barrister and former Bell Gully partner Chris Finlayson.
POLICE ON VERGE OF SECOND ENQUIRY INTO DAVID COLLINS
20 October 2008
A new Police complaint against embattled New
Zealand Solicitor General
David Collins (left) is being explored in relation to Mr Collins' recent attempts to prevent evidence of Judicial conflict of interest by current
New Zealand Supreme Court Justice
Bill Wilson from being brought before the Court.
Prime Minister Helen Clark and Deputy Prime Minister Michael Cullen have been briefed in relation to the multiple criminal investigations against Mr Collins but have chosen to bury the mounting scandal within their administration in the lead up to the election. The Labour government's re-election platform is that this election is about "trust".
Dominion Post was to run an article but the editors killed the article in the wake of the Solicitor General's unsuccessful prosecution of the newspaper for contempt last month. That prosecution was over the DomPost's publishing Police evidence in the ill-advised Crown prosecutions under the 'Terrorist Suppression Act' last year. DomPost Editor Tim Pankhurst has spoken candidly about the grueling 6 hours of cross-examination he was subjected to by Mr Collins in that action.
Last year, Judge Wilson failed to recuse himself in an appeal he presided over where the lawyer acting for the appellant, Alan Galbraith QC, is his 50% partner in a $10 Million stud farm. Wilson J remained on the panel which overturned the High Court decision and ruled in favour of his business partner's client in
v the Wool Board.
Detective Inspector Rod Drew, who is currently conducting a criminal investigation of Mr Collins under section 111 of the Crimes Act in another matter, refused to take the new complaint on board, citing his
"very specific terms of reference" in the earlier investigation as a constraint. He referred the new complaint to another senior Police official.
Along with the Judicial Conduct Commissioner Ian Haynes, Collins repeatedly tried to quash any vetting of the complaint against Justice Wilson, even after Legal Ethics Professor Duncan Webb of Canterbury University countered their legal excuses as to why the complaint could not proceed. After a Special Leave application was filed in the Supreme Court last month, Mr Collins phoned Al Morrison, the boss of the Applicant's solicitor Sue Grey and had her fired after she refused to remove herself as lawyer for the client she had acted for over 5 years. Collins claimed that because Ms Grey worked for the Department of Conservation, her action against a Crown Judicial officer violated her duty to the Crown, putting the lawyer in a conflict of interest.
In the meantime, David Collins remains Solicitor General, even though he is under criminal investigation. Mr Collins sees no conflict of interest in the result that, if the Police conclude Collins should be criminally prosecuted in the first complaint, Mr Collins, acting for the Crown, would be called upon to make the determination as to whether or not to prosecute himself. #
PM TOLD OF CRIMINAL PROBE OF DAVID COLLINS
8 September 2008
Prime Minister Helen Clark was privately informed of the Police criminal investigation into Solicitor General David Collins last Thursday. How is she handling the investigation and the potential three year prison sentence the alleged offence carries against her highest legal appointee? (
ROYAL COMMISSION OF PAIN
23 June 2008
This year is proving to be an inauspicious one for the Auckland City Council and its well-paid allies (read 'contractors'). The
Royal Commission of Inquiry looking into governance practices by local Councils was, only a year ago, expected to be a mere formality designed to show the public that politicians and bureaucrats were not asleep at the switch when it came to the efficient spending of the public's hard-earned local rates. What a difference a year makes.
SOLICITOR GENERAL TESTIFIES NO UNLAWFUL ORDERS OCCUR IN NEW ZEALAND
18 June 2008
Testifying before a two judge panel in the Auckland High Court contempt trial of Vince Siemer on Monday, Solicitor General David Collins was not pleased. His terse answers revealed much about the man, as well as his motivation in bringing the contempt action against Mr Siemer for operating this website. Mr Collins has alleged that comments relating to Mr Stiassny on this site violate a temporary gag order by the Court issued back in May 2005. Mr Collins admitted his action is highly unusual but insisted it was necessary in this case to protect the rule of law in New Zealand.
The diminutive Mr Collins elevated himself in his chair in order to rest his elbows on the witness box and, in a measured and sure tone, claimed his application was a last resort, and well worth the $250,000 in taxpayer funds it is expected to cost. Judges Gendall and Chisholm refused to allow Mr Collins to be classified as a hostile witness because he had not filed an affidavit in support of his own application. Their Honours imposed strict limitations on the scope of questioning. Nonetheless, the witness testified to have never witnessed an unlawful order by a New Zealand judge in his long and broadly experienced career.
At one point Mr Collins responded to a hypothetical question put to him of whether a judicial order which compelled a party to medical testing or barred certain races of people from associating would constitute an unlawful order of the judge. He answered 'No', -even repeating his answer when the bewilderment in the Courtroom became palpable. Justice Chisolm and Gendall quickly intervened to save the Solicitor General from himself and let it be known that the questions and answers were not helpful in the determination the Court would ultimately make.
As a 'defence' witness, the defense was prohibited from challenging any of Mr Collins' answers. Mr Collins twice appealed to the judges to rule that he not be required to answer a question put to him.
The next witness, Ms Esther Watt of the Crown Law office, was not so fortunate. Ms Watt had been employed less than six months in the Crown Law office when she was directed by Mr Collins to monitor the websites www.kiwisfirst.co.nz and www.stiassny.xxx for injunction-challenging content. She submitted two affidavits wherein she asserted her exhibits (publications off the above websites) confirmed a breach of the 5 May 2005 injunction ruling of Ellen France J. The problem was Ms Watt admitted under cross-examination that her only duty for the Crown in this case was to periodically print out the contents of the websites. She claimed not to have been included in the discussions as to what was alleged to have breached the injunction and she further admitted she had only 'skimmed' Justice France's injunction order.
Ms Watt's early testimony that she had only a cursory involvement in the case elicited questions on how she could possibly have been promoted by the Crown as their star (and sole) material witness if this were the case. Mr Siemer then quoted Ms. Watt's latest affidavit wherein she swore
"Since the date of my first affidavit I have viewed the websites... from time to time, this process has confirmed that information which breaches the injunction of Ellen France of 5 May 2005 has continuously been published on those websites since 28 January 2008". Ms Watt tried to restore some credibility after the revelation but the damage had already been done. After being dismissed, Mr Collins comforted Ms Watt outside the Court.
The second day of the two-day hearing saw only oral submissions from both parties. Madeliene Laracy, counsel for the Solicitor General, tried to recover from Ms Watt's poor performance on cross-examination and meticulously laid out the publications which the S-G alleged breached the 3 year old gag order. She relied on contempt cases as far away as Ireland and South Africa.
After Ms Laracy laid out the Sol. General's case, Mr Siemer responded by pointing out what he said was Ms Laracy's 'utter failure' to relate one publication to any passage within the injunction she purported to solely rely upon.
It was only then that the Court allowed Mr Siemer to argue his application to dismiss the proceeding as 'double jeopardy', as provided by section 26 of the New Zealand Bill of Rights Act 1990. He then cited Potter J's earlier ruling of 13 July 2007 that purported to deal conclusively with the injunction; reading from Her Honour's ruling that the six week prison sentence at the time
"reflects the past and continuing breaches of the injunction" by the respondent.
As with Mr Siemer's application for a trial by jury under section 24 of the Bill of Rights Act, the Court refused to acknowledge its statutory obligations under section 26, instead relying on 'judicial discretion'. At one point late in the two day hearing, heated debate erupted between Mr Siemer and the bench when the judges claimed they did not have to give their reasons for not acknowledging the Bill of Rights guarantees. Mr Siemer accused Gendall and Chisholm JJ of attempting to 'legislate from the bench' after they accused him of breaking the 'law' but then refusing to tell him what that law might be. When Chisholm J insisted it was up to the Court to define the meanings of these straightforward laws, Mr Siemer read Article 67 of the North Korean Constitution that stated
"The State shall guarantee... freedom of speech, of the press, of assembly, demonstration and association". He implored the judges not to treat New Zealand law as the North Korean Courts treat their Constitution.
The hearing adjourned at 4:30 pm. The judges have reserved their decision..
JUDICIAL CONDUCT COMMISSIONER IAN HAYNES IS 0 for 250
Justice Minister Wages War on Estate Agents to Divert Attention Away From Situation
19 November 2007
Kiwisfirst has uncovered serious deceit and conflict of interest charges against Ian Haynes. Haynes, who has been the Judicial Conduct Commissioner since the inception of the position by Parliament in 2004 to combat judicial misconduct in New Zealand, has handled some 250 separate misconduct complaints against judges without a single one deemed worthy of even a formal investigation (which was the entire purpose of Parliament establishing his office).
It was first revealed six months ago by
kiwisfirst that Mr Haynes is a current partner of lawfirm Kensington Swan. As such his personal income is directly tied to keeping all judges, corrupt or honest, fat and happy. Last year, Mr Haynes' firm was given $2.26 Million dollars in legal aid by the government - more than 10% of the entire nationwide budget. Mr. Haynes' take from this alone would have been over $100,000. Legal Aid is significantly influenced by the judiciary. Mr Haynes would say his position as JCC and his firm receiving almost two and a half times more money than the next highest lawfirm allocation of legal aid largesse is purely coincidence. Perhaps, but then I also heard pigs can fly (the latter claim not from Haynes). What this information does do is add new meaning to Mr Haynes claim to
kiwisfirst editor in May 2007 that he is not the Judicial Conduct Commissioner for the $90,000 annual salary the position allows.
The greatest problem and threat to the public - given the small, cloistered and closed knit commaderie of NZ judges - is that Mr Haynes has a distinct conflict of interest between his oath to protect the people of New Zealand against errant judges and his professional and financial livelihood. Gambling, debt and drug problems of many judges are adding undue pressures on Mr Haynes to 'tow the company line' to protect his legal colleagues. In legal communities around the world, this type of conflict of interest would get a lawyer disbarred. Not in New Zealand. Like the Police, there is a general culture within the NZ Courts that it is better to maintain the appearance of honour and integrity of judges even if this means hiding some egregious misconduct by a few. As an 'old-boy's' old-boy, Haynes subscribes to this misguided principle. He protects the judges. Judges then protect him and help make him a wealthy man in the typical
quid pro quo.
It gets worse. Haynes has repeatedly claimed he is not able to access court audio-transcripts and computer records to investigate judicial misconduct charges - only 'written documents'. This claim is despite all Court rules' definitions of 'documents' including these forms. More unsettling than this, Haynes would know that New Zealand Courts are notorious for inaccurately transcribing audio-transcripts and altering written documents, particularly when judges conduct is challenged. Every lawyer who appears in court regularly knows this but all are prohibited from saying anything by a strict Law Society code that will revoke a lawyers license for 'bringing the Court into disrepute'. Several years ago the High Court and Court of Appeal specifically prohibited accurate recording unless the judge gives permission - this because too many judges were being caught out fabricating records.
When the heat of a valid judicial conduct complaint gets too much, Haynes is also prone to claim his ruling is based on anonymous outside legal advice. This way he cannot be held directly and personally accountable for protecting a corrupt judge against the weight of the evidence. He simply claims he acted on professional advice at the time. The giver of the advice, in turn, cannot be held accountable because his/her only obligation is to the person soliciting their advice and they had no control over how their advice was used by the party seeking and using it. Consequently, one hand legally washes the other. It is a common ploy used by lawyers in professional negligence cases.
Where are our Justice Ministers when this travesty is occuring? Ironically, Associate Justice Minister Clayton Cosgrove (above) is on a mission to instill more oversight of the real estate industry. He has been a virile critic that the 2 1/2% discipline rate by the Real Estate Institute of complaints against its members is obvious evidence the real estate industry is not doing an effective job of policing its own. At the same time Mr Cosgrove's own Judicial Conduct Commissioner is sitting on a zero percent success rate in merely launching a formal investigation. Not one! The contrast could hardly be more stark. How does Mr Cosgrove keep a straight face through the hypocrisy? He refuses to comment. It appears hypocrisy has no bounds when it comes to politics and corrupt lawyers. Not surprisingly, Justice is Mr Cosgrove's trusted government responsibility, his baby, in his own backyard. The joke is, once Mr Cosgrove brings Real Estate Agents under his protective wing, disciplinary actions against them will sink, like judicial discipline, to zero percent.
The Police, lawyers, accountants and engineers are but a few of the many other professions who regualate the conduct of their members in New Zealand.
This is an appropriate time to mention that the new
Lawyers and Conveyancers Act 2006 now gives lawyers the right to sell real estate and broker loans. No doubt we can take comfort in Mr Cosgrove holding lawyers accountable once they take over the job of the real estate agents he seeks to vilify and run out of town. This is where we quote the Tui beer campaign: "Yeah, Right".
Mr Cosgrove does not need real estate agents but he is clever enough to know politicians can never have too many lawyers-turned-judges in their corner. For him there is no downside in protecting dishonest judges. Perhaps with legislators like Mr Cosgrove protecting our interests, we should count our blessings. He could have been put in charge of terrorism.#
To express any comments to the Hon. Clayton Cosgrove, email him at
CHAOS IN THE AUCKLAND HIGH COURT
5 December 2007
Despite an increase in the number of High Court judges being appointed, case backlogs have increased significantly in the Auckland High Court in the last two years. Currently some cases set for trial are having to wait more than a year for a trial fixture from the Court Registrar.
There are a number of apparent reasons for the chaos now plaguing the Court. The high turnover of court staff is not an insignificant one. But perhaps more problematic than this turnover is how court proceedings are set and actually conducted. Professional courtesy by judges to fellow lawyers has become so seemingly paramount, and the fear by lawyers that a hearing adjourned due to insufficient time so commonplace, that both sides are increasingly demanding longer average fixture allotments from the Registrar. This cannot help but place a burden on the court. The Registrar does try to effectively deal with this imposing demand by overbooking fixtures, having the realistic expectation that a large number of cases will fall out due to settlement, a truncated trial or further adjournment applications. Still, overbooking is conducted with an eye toward caution. The consequence is that in any given week, many judges find themselves with a lighter than average schedule. Paradoxically, the backlog of cases increases.
Another quite significant problem is the average court day. It starts typically at 10:00 am and ends at 5:00 pm. Officially included in this 7 hour period is a lunch of 75 minutes and two 15 minute tea breaks. Many judges run a tight ship and pack a full day in the available 5 ¼ hours. However, this is not the rule. As only the judge determines the schedule, lunches frequently extend to 1 ½ hours and breaks to 25 minutes. It is not uncommon for tea breaks to last for a half hour, as the parties waiting for the hearing to reconvene occupy themselves with small talk in the courtroom. Consequently, a full day in court often amounts to barely 4 ½ hours.
The biggest losers in all this are the public. Lawyers typically charge a daily rate for court appearances. Quite often this includes up to 16 billable hours preparation for each day expected in court. If the judge's conduct of the proceedings results in a three day trial instead of two, everyone carries the resultant burden. Sure, the lawyer gets paid for waiting around, but few conscientious ones feel good about it. The Registrar faces additional scheduling stress and the cost of justice increases unnecessarily for all.
Finally there is the tactic some lawyers employ to delay the proceedings. As the ability to obtain an early trial fixture is inversely proportional to the number of days requested, a lawyer who does not want his case heard any time soon will merely say the matter requires a much longer trial fixture than he considers will likely be the case. This is simply smart lawyering but it ultimately falls to the judges to either comply or prudently ascertain this to be a less than earnest demand on limited court resources. Few judges are actually inclined to curtail the requests.
A great deal of new legislation has been enacted in the last couple years and a complete review of existing laws is underway by Sir Geoffrey Palmer. The chaos in the Auckland Court comes at a crucial time in New Zealand's recent history which, together, threatens to create the ingredients of a perfect storm. #
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VECTOR AGM A LESSON IN CORPORATE THUGGERY
20 October 2007
Amid hired security forces that rivaled that of a traveling head of state, Vector Chairman Michael Stiassny threatened looming electricity infrastructure cutbacks and looked to blame Vector's lackluster business performance and its huge and mounting debt on government regulators during the company's annual general meeting yesterday.
About three hundred people attended the gathering held at Ellerslie Event Centre. At least two shareholders were denied access by Russell McVeagh solicitor Michael Heron who said he had orders from the board of directors to instruct security staff to prohibit these shareholders from entering.
In a scene reminiscent of Jonestown (the former Jim Jones sect compound in Guyana infamous for murder and mass suicide) the Chairman commenced the meeting by pointing out all the exits before launching into claims that the company was under siege from the Commerce Commission. Security guards stood ominously at the doors as he spoke. Cameras were not allowed in. He wasted no time telling shareholders that this regulatory environment singularly threatened their investments. In a salvo fired at consumers he warned the company's future investment into electricity and gas supply infrastructure was also at risk. Both Stiassny and Acting CEO Simon McKenzie stressed the uncertainty and unpredictability of the regulators as the true source of Vector's financial woes.
Vector's financial troubles are no small problem, not simply for the investors but also the regional consumers who have seen the company's debt skyrocket over the last few years to a current $3.127 billion - up $46 million from last year despite selling off nominal assets. In order to maintain the dividend payment to shareholders this year, retained earnings went into negative territory. The monopoly utility also has $1.6 billion in goodwill that it has been unable to significantly write down due to its perilous financial position. This overall financial scenario is now being used to pressure the regulators into letting Vector charge power consumers more than the Commerce Commission has said they are entitled to do.
The current situation is in stark contrast to two years ago when Stiassny was proudly telling public meetings that he was responsible for a half billion dollar unrealized capital gain on the acquisition of NGC by Vector. If true, Vector could sure stand to capitalize on this gain now. However, as with much that comes from Stiassny, this was part arrogant bluster and part accounting parlor tricks serving to pass as accepted fact. Nevertheless, the real story is the substantial debt that the company took on board at the time of this purchase and which it now is struggling to discharge. The company has recently looked hard at selling off assets to get its debt ratios down to reasonable levels and its precarious BBB+ (with negative outlook) credit rating up.
Although the investors were generally unhappy, the Chairman and acting CEO were reasonably successful in diverting attention away from Vector's recent management chaos. Three directors resigned en masse within the last year and both the Chief Executive Officer and Chief Financial Officer abruptly resigned five months ago. Director Karen Sherry, a lawyer and political appointee with little business experience, had been put in charge of risk assessment for Vector in the midst of this drama. Sherry has been a staunch supporter of Stiassny since his appointment.
Questions from the floor included why cameras were prevented, when this was atypical for AGM's of public companies. The Chairman responded that he did this to avoid the event turing into a circus.
Vince Siemer was one shareholder unlawfully prevented access to the meeting. A
Sunday Star-Times photographer was another. Stiassny filed a $1.25 million defamation claim against Siemer two and a half years ago but has done virtually nothing to advance the matter since. In July of this year - when Siemer was on a two week trip overseas - Stiassny was able to get a High Court order from Justice Judith Potter that debarred Siemer from defending his defamation claim. This issue is now before the Court of Appeal. For two months the Court of Appeal has failed to schedule a hearing citing the large number of appeals Siemer has filed as one reason for the delay. Potter was deeply involved with the Electricity Commission before her appointment as judge and has openly defended Stiassny in court. Three of Stiassny's former lawyers now sit as High Court judges. The judge that granted Stiassny his injunction against Siemer is a former chambers' partner of Stiassny's current lawyer Julian Miles QC.
Sunday Star-Times photographer was noticeably shaken after two sentries from Force One Security followed him out to his car. He phoned Siemer to ask that he come to the racetrack exit gate for a photograph so as to avoid another confrontation. Later, when Siemer called SST's business editor Tim Hunter, Hunter told him that he could understand why Vector would prohibit Siemer from attending but that he had personally called Vector to
"tell them that I was unimpressed" that they prohibited entry to the newspaper's photographer. Hunter added, however, that this was not a worthwhile story.
Siemer, who has a bachelors degree in industrial relations and an MBA from Washington University in the United States and has run successful companies abroad, wanted to ask the directors questions regarding the goodwill, debt covenants and foreign currency risks. In being denied entry into the meeting, Siemer drew a parallel with attempts to silence critics of ENRON ten years ago. He considers it is no accident that no one on the Board other than Chairman Stiassny has comprehensive accounting or finance experience and has made a written request of each director asking them whether they personally agree with the company's current financial statements. Siemer views the recent move to appoint Hugh Fletcher (husband of the Chief Justice of the Supreme Court) a director of Vector is little more than a political pressure move. Hugh Fletcher's own business background, while extensive, is uninspiring. Excluding Stiassny, the current directors of this $4 billion dollar essential service provider average less than a year on the board. (
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NEW ZEALAND COURT OF APPEAL PRESIDENT CAUGHT IN CROSS-HAIRS
Dateline: 14 April 2007
In a ruling passed down by
Court of Appeal
President William Young this week, His Honour sought to quell a firestorm of controversy surounding three High Court judges - Judith Potter, Robert Chambers and Ellen France - accused of breach of judicial duty in acting independently to suppress evidence and pervert the course of justice on behalf of a prominent Auckland insolvency practitioner and New Zealand Law Society convener.
The saga began in April 2005, when then newly appointed High Court
Judge Ellen France ruled she was incapable of seeing incontrovertible evidence placed before her in the form of a High Court report and affidavit showing
[SENTENCE DELETED BY ORDER OF NZ SOLICITOR GENERAL - EMAIL HIM AT
TO ASK WHY]. This was potentially catastrophic to Staissny's professional survival because it seemed a simple accounting case; Paragon was not trading, had no debt and had $150,000 cash on hand at the time. It was also before Justice France that Stiassny admitted to attempting to overcharge Paragon some $11,000 in fees as well as retaining - after earlier claiming that he never possessed - files relating to the company's intellectual property worth $750,000. Stiassny emphatically claimed to Justice France both were honest errors.
Given the stature of Mr. Stiassny and the prominence of his lawyer, Julian Miles QC, Justice France took the easy route of issuing an injunction preventing publication of the evidence. She had little idea at the time this ruling would come back to haunt her, made all the more certain because France J went two steps further in (1) ruling it was clear to her that Mr. Stiassny had not labelled the company insolvent and (2) it was equally clear to her that the attempted overcharge was an honest accounting error despite no evidence to support her finding other than Stiassny's unsupported claim this was the case.
You could hear the proverbial pin drop when it was subsequently uncovered that the substantial fees overcharge did not come about in the manner Stiassny claimed to the Court to be the case. Ironically it was
Justice Willy Young who innocently suggested in November 2005 that Stiassny - who he called "a reputable accountant" from the bench - could quite easily put the matter to rest by producing bank records that showed the error, once discovered, was correctly charged to "Paramount" instead. Oops. A stern look from Stiassny's counsel let Justice Young know that this was not part of the plan and Young J never mentioned it again.
Such an obvious epiphany would reasonably be expected to stimulate judicial remorse but, in the real world of the New Zealand Courts, it resulted in Justice Willy Young buttoning down the hatches. By overstepping the bounds of law and evidence, Justice France had created a situation borne of a calculated gamble. The deliberate nature of France's gamble would prove more than a little problematic in an appeals process geared toward correcting misinterpretation of laws and facts by judges, but one that goes legally blind and deaf and instinctively recoils when it becomes apparent a judge overtly dismissed laws and evidence. Whatever judicial obligations Justice Young may have had, it was clear that keeping such judicial misconduct from being exposed was now his overriding aim.
This is an important juncture to note that despite a roster of nearly 200 judges in New Zealand, no judge has been removed for judicial misconduct. In fact, several judges, including the recently retired Auckland High Court Justice David Morris, were appointed to judge to escape a summons (Judges are immune from prosecution).
When Justice France's decision was appealed to and heard by the New Zealand Court of Appeal in November 2005, Justice Young handed the matter over to
Justice Robert Chambers, an admitted mate of the repondent and well known within the Court as an aggressive and highly opinionated lawyer-turned-judge. Chambers, one of the more astute and intellectual judges, immediately identified that France's ruling was untenable but, in an effort to protect the judge's character, as well as to assist his good mate, embarked on a legal adventure of cunning genius. He refused to overturn France's decision and even refused to address the validity of the points of appeal, choosing instead to say the matter was a contractual dispute that singularly warranted dismissal of the appeal and maintaining of the injunction. But Chambers J had a further problem. The course he embarked on contrasted with the Ellen France judgment and was not a point that had been cross-appealed. Consequently, Justice Chambers boldly wrote that by ruling this way he was merely agreeing with what Justice France
thought - despite the fact that Justice France's judgment said the opposite on this point.
There is an axiom in the Court that
"you attack the judgment, not the judge", admittedly a difficult course when the issue is judicial misconduct. If anything, this case proves what lengths certain judges will go to cover up misconduct when such misconduct is not handled, once exposed, in the congenial and euphemistic manner that minimally allows all the perpetrators to escape culpability.
When charges of injunction contempt were advanced before
Justice Judith Potter in December 2005, Potter was so incensed by the effort to expose what Justice France did that she took to conducting proceedings ex-parte and preventing cross-examination of witnesses.
Eight unimpeachable witnesses would later provide uncontested evidence to the Court of Appeal regarding Justice Potter's numerous breaches of essential legal procedures that were as shocking as they were unbefitting a first year law student, let alone a judge of Potter's standing.
Into this fray Willy Young, President of the Court of Appeal, was again forced in November 2006. Within the close-knit judiciary, Will Young is well-known as a lawyer with a sordid past. In his earlier days as a Serious Fraud Office lawyer, Mr. Young intervenned to prevent his cousin being prosecuted in a share market fraud that saw many honest, hardworking Kiwis lose life savings. A business partner of Justice Young's cousin subsequently took the fall alone. Moreover, and despite this history, Mr. Young owes much of his appointment and rise through the judicial ranks to his brother Neville Young being a former president of the National Party, one of the two major political parties in New Zealand.
The upshot to all this is even if Justice Young wanted to rise to the noble and trusted mandate of his judicial oath, his personal history virtually prevents him from taking the moral high ground with judges now under him. Further, it has been disclosed by a Court insider that, perversely, Mr. Young owes his appointment to the Presidency of the Court of Appeal in 2006 in large part to his checkered past. It is these skeletons in his closet that ensure he will not aggressively act to censure other judges who misbehave - thereby effectively insulating all judges from being held accountable by the President of the Court. In the self-preservation world of the New Zealand Courts, it is considered imperative that one judge not have too much power over the others.
This moral vulnerability was sadly evident when Justice Young issued witness subpoenas for Barristers Grant Illingworth QC and Mr. Colin Henry J.D in CA55/06 last November. In response to receiving the witness summons, Mr. Illingworth breached legal privilege by deliberately sending client communications unsolicited to the Appellate Court and to opposing counsel. Justice Young would later say that because he did not read them, he did not see where any privilege had been breached (he ignored the fact that opposing counsel was also sent copies). Having effectively castrated Willy Young, Mr. Illingworth demonstrated his keen ability to further exploit Justice Young's past transgressions by insisting the witness summons be withdrawn. Justice Young withdrew the witness summons after Illingworth made it clear he was not about to be put in a position that would force him to lie under oath to protect his career. If Illingworth went down, he was going to take the President with him. If nothing else, Justice Young understands plain threats.
Considering the personal baggage that Justice Young brought with him, it is perhaps not surprising that His Honour, President of the Court of Appeal Justice Young claimed that he could not find any fault with the conduct of Judge Judy Potter and evaded, by omission, having to address any of the damning evidence that Justices France and Chambers breached their judicial oath by their misconduct. Further, Young insisted the evidence of Stiassny's perjury fell outside the narrow scope he imposed upon the hearing, despite the fact that well-established law required the Court to act pro-actively when it could be demonstrated that prior restraint (an active injunction) was obtained from the Court on spurious grounds.
A private audio-tape recording of this Court of Appeal hearing reveals cross-examination of Stiassny's partner that demonstrated to the appellate panel that
[SENTENCE DELETED BY ORDER OF NZ SOLICITOR GENERAL - EMAIL HIM AT
TO ASK WHY]. As the judges quickly composed themselves, Justice Young called an abrupt end to the cross-examination, with
Justice Mark O'Regan subsequently claiming that this implicit admission (the witness refused to confirm the evidence before Justice Young's intervention) could amount to nothing more than a
minor point. For her part,
Justice Susan Glazebrook thought better of the situation after the lunch break and opined whether the court was a bit hasty in releasing the witness, then inquired of the appellant whether there were subsequent issues that he was unable to address with the witness as a result. It seemed a nice gesture.
The story gets still
"curiouser and curiouser" as Alice in Wonderland would say. Remember the brother Neville that Will Young owes much of his career success to? Neville now sits as director of the Electricity Commission, directly tied to the fortunes of Vector Energy, of which Stiassny is chairman and, but for the grace of Will Young, would be scrutinized by investors for accounting anomalies that have resulted in Stiassny valuing Vector's assets on the basis of replacement value and with the allocation of over 30% of the monopoly utility's current valuation to "goodwill".
[RELATED STORY LINK BLOCKED BY ORDER OF NZ SOLICITOR GENERAL - EMAIL HIM
TO ASK WHY] #
Editor's footnote: Nothing in this article should be construed to suggest Neville Young is complicit in the actions of his brother or the Court in general.
NATIONAL BRAIN DRAIN - FACT or FICTION?
Date published: 14 March 2007
Dissertations on the 'brain drain' of skilled labour overseas have become part of the Kiwi culture, feeding the perennial debate in relation to how concerned we should be in this regard. There is little question that, for a country of only 4 million people, New Zealand is overrepresented on the world stage in the success of its ex-pats. The important question is whether the success of our intellectual exports comes at the cost of success at home. While a simple question, it has inherent complexities that thwart a simple answer.
Any attempt to simplify the examination is fraught with peril, not only because of the abundance of often contradictory statistics but also due to the varying assumptions and methods that underpin the results. As former US president Bill Clinton once famously testified, "It depends upon what the definition of 'is' is".
This aside, we will fearlessly attempt to strip bare the facts and provide an insightful view on the topic. In doing so, it is first necessary to recognize that New Zealand is a migrant country. Almost 20% of the New Zealand population is foreign-born. Conversely, the OECD (Organization for Economic and Co-operation Development), a group of 29 developed democracies, conducted a study in 2005 that concluded 10% of native New Zealanders live abroad. Two key reasons for these statistics should provide some comfort. First, New Zealand (along with countries such as the United States, Canada and Australia) is classified a 'settlement country' by the OECD - in other words, countries that naturally appeal to immigrants. Second, emigration is often driven by pulling factors in an international labour market, language skills, access to information and the financial ability of people to migrate elsewhere, as well as determined by the country's culture in relation to migrating. All these factors make emigrating from New Zealand more appealing - and possible - relative to most other countries.
But migration is not the core issue in this debate. While New Zealand was experiencing annual net migration losses in the 1990's, this trend has reversed in recent years with a net increase into New Zealand of just under 20,000 last year. The rub comes in the classification of 'skilled' or advanced education among the migrants and whether New Zealand is, in effect, giving away more that it is attracting. On this issue, there is legitimate cause for concern.
The 2005 Dumont/Lemaitre study for the OECD ranked numerous criteria on migration. But on what many would consider a most critical statistic, New Zealand topped the list of OECD countries with 24.2% of its highly skilled citizens living abroad. This contrasted with Australia - still high on the list at #5 - coming in at 14.5% of its highly skilled natives living abroad. But there are other factors that accentuate even this disparity. While the exchange of highly skilled workers to and from New Zealand within the OECD countries was basically a wash, Australia had an immigration flow of skilled immigrants ten times higher than its highly skilled emigrants. And the United States was much better still with 16 times more skilled immigrants than emigrants. This said, the picture for New Zealand undoubtedly improves when you consider non-OECD countries such as India and South Africa, just two countries providing a good influx of skilled immigrants to New Zealand.
Of the OECD countries, the United Kingdom, Australia, the Netherlands and Korea are the top four birth places of emigrants to New Zealand respectively.
In the 1990's New Zealand adopted a selective immigration policy based upon human capital that has resulted in net gains in highly skilled immigrants, increasing almost 25% in the first four years of the decade. But the question still remains whether these skill levels are equal to those going overseas. Interestingly, while it has been long accepted that better job prospects and higher wages overseas have drawn many of the brightest and best talent offshore, the OECD found no strong correlation between the emigration rates of the highly skilled relative to unemployment levels and per capita income. This unexpected finding has been attributed by the OECD study to the historical aspects of the data being compiled. Undoubtedly differences in wage levels, and in returns to education between sending and receiving countries, are significant drivers. The empirical evidence is that higher wages overseas for comparable skills is still a major reason why many of the more highly skilled residents are leaving, although the strong economy and skills shortages are causing the government and business to be more aggressive in the retention of skilled natives.
So what is being done and what can be done to retain skills at home and entice skilled ex-pats home. This requires first an understanding of the primary motives for moving abroad as well as the likely priorities of, and opportunities for, those willing to move back. In a survey of 18,000 ex-pats by KEA New Zealand released last year, more than 40% of respondents said they are living overseas for economic reasons, such as a specific job or general career prospects, and 30% of them were earning more than NZ$100,000 per year (compared to just 3% of the population in New Zealand at the time). By contrast, only 3% of those who expect to return say they will do so primarily for economic reasons. Instead, family and lifestyle considerations are the overwhelming top reasons for intending to return. While a slim majority stated an intention to eventually return to New Zealand to live, relatively few had imminent plans to do so. The inference that New Zealand has more attraction as a retirement destination than a work centre should legitimately cause concern for those interested in New Zealand's future place in the World economy.
In talking with a number of these highly skilled ex-pats for this story (including a couple who have recently moved back) the biggest lament heard was the limited opportunity they perceive in the job market here, an environment that many in business considered parochial and incestuous, with a relatively small and personally close-knit group of business leaders defining the status quo. Even for those who would make the wage compromise in order for the lifestyle they prefer in New Zealand, this lack of a dynamic business environment was cited as an unattractive proposition. Strong community, social and/or family attachments developed in their adopted country (many ex-pats have spouses who are not New Zealanders) were also cited. Another obstacle is that Kiwis in highly specialized fields, say in bio-research or software development, are often forced to look overseas to satisfy their professional ambitions.
The government, aware of increasing competition for skilled migrants within the OECD and the unattractiveness of its tax policies relative to other OECD countries, is considering proposals that would offer limited exemptions on foreign based income or a narrow exemption on tax rules that are more comprehensive than the international norm in order to assist in the recruitment of talent back to New Zealand.
For more information on Kea New Zealand
LEGAL AID FEES TOP $20 MILLION
Published 12 March 2007
Some law firms in New Zealand are receiving hundreds of thousands of dollars in fees for legal aid cases.
Information released under the Official Information Act shows the top earner from legal aid cases, Kensington Swan in Wellington, received $2.26 million in one year.
Recently the New Zealand Law Society said legal aid pay rates are too low and lawyers are quitting the scheme in droves.
But figures from the Legal Services Agency show that for the year ended June 2006 nine firms received more than $500,000 in legal aid.
Payments were made to more than 1,400 New Zealand lawyers and law firms - the top 50 claimants together shared $20 million in legal aid payments for the year.
LawFuel.com, a law news website, says many of the top legal aid payments went to firms that handle Maori land, fisheries and health-related work.
The $2.26 million to Kensington Swan, Wellington was followed by $950,380 to Sonja M Cooper, Wellington, $936,625 to Charl Hirschfeld - Barrister, Auckland Central, $880,245 to Rangitauira & Co, Rotorua, $862,969 to Rainey Collins, Wellington, and $768,141 to Powell Webber & Associates, Parnell.
STIASSNY IN FIRING LINE
-- first published 23/12/06
Michael Stiassny (52, of St. Heliers Bay) has hit a rough patch in 2006. He was kicked off the Met Life board, forced to resign as chair of Metro Water and witnessed the only 3 directors with business skills abandon the Vector board because he refused to resign from that board two weeks ago. At the same time, Vector management has revolted at Stiassny's specious public claims and promises of strong financial performance at Vector, coupled with his demand that Vector CEO Franklin and CFO Peter Fredricson then find a way to produce the numbers he has publicly claimed. CEO Mark Franklin in particular has had several confrontations with Stiassny over his belligerent personal style and inverted business approach since being recruited from Australia two years ago. In addition to almost doubling his own pay, Stiassny had to seek approval of a pay package approaching a million dollars per year in order to placate Franklin and thereby prevent an open and nasty revolt.
Then there was Stiassny's declared war on the Commerce Commission last winter over the Commerce Commission's stated intention of taking over Vector (an electricity lines company) for unfair charging practices - coupled with Stiassny's threats of power blackouts if the Commerce Commission did not back down - as well as an active Court action that seeks to hold him personally responsible for losses suffered by the Trinity Foundation Ltd. in relation to a failed tax scam (see related story left column). In addition to all this, a formal complaint this month was laid with the NZ Police alleging Stiassny perjured himself in the Auckland High Court in relation to fee overcharging in his insolvency accounting practice. On 8 February 2007, Stiassny is before the Court of Appeal in Wellington in relation to an appeal stemming from his alleged perjury.
At Vector, John Goulter, Greg Muir and Tony Gibbs resigned Vector CEO Mark Franklin & CFO Fredricson from the Vector Board on 13 December 2006, citing the direction of the company and Stiassny's refusal to step down as their reasons for leaving. Their abandonment leaves Stiassny's girlfriend Karen Sherry and Shale Chambers, both with limited business backgrounds and virtually no board experience, and the vacillating Robert Thompson to govern the $3.7 billion dollar company (or $5.7 billion company according to Stiassny). Of particular concern to Vector investors was Staissny's replacing the now departed Goulter as chairman of the Risk and Assurance Committee with Ms. Sherry, virtually the only person who is blind to the risks imposed upon the organization by Stiassny.
One of many immediate challenges Vector faces is how to write off $1.7 billion in 'goodwill'. While most insiders recognize the current board is ill-equipped to deal with the challenges ahead, the board and management at Vector are taking some comfort that, as a monopoly provider of an essential public service, the Auckland and Wellington public have no option but to financially support the company until such time government or regulatory authorities follow through and step in to safeguard the company and consumers. Board member Shale Chambers, appointed only last August, is taking additional comfort in the fact that he was not directly involved in the financial mess that currently plagues Vector and has been kept in the dark in relation to the side deals Stiassny and Sherry have made.
Meanwhile, two former Auckland Energy Consumer Trustees have asked the Labour government to investigate Mr. Stiassny's conduct in relation to Vector. As if this was not enough trouble facing Stiassny, consumer advocate Penny Bright of the public watchdog Water Pressure Group was last week successful in advancing two Parliamentary select committee inquiries into Stiassny's conduct at Metro Water when Maori MP and party leader Dr. Pita Sharples tabled the complaints before Parliament. They include petitions asking for a parliamentary investigation into overcharging and collection practices that unlawfully targeted certain Metro Water consumers for bankruptcy.
In July, then Metro Water Chairman Michael Stiassny admitted that water charges in Auckland were going up 9.7% instead of 3% in order that Metro Water could fund other non- water related city expenditures, such as the $84,000 global working holiday that certain Auckland Councilors took a year ago. This admission followed a 'public' Council meeting held in May where Stiassny demanded the meeting go into 'confidential' session before he would discuss such financial arrangements that violate the public charter. Ms. Bright was arrested when she refused to leave the public gallery on the order of meeting Chair and Auckland Councillor Vern Walsh that the public leave in response to Stiassny's demand.
Ms. Bright and the Water Pressure Group's case was bolstered last week when Auckland District Court Judge Nicola Mathers ruled that Metro Water has a legal obligation to follow its dispute process. It is uncertain whether Metro Water lawyers Chapman Tripp will be retained now that Staissny has been forced out. Earlier in the year Stiassny ordered Chapman Tripp to bankrupt Water Pressure Group member Moli Tevaga over a disputed $2,800 water bill rather than follow proper administrative procedures. Mr. Tevaga was adjudicated bankrupt in August. Metro Water spent $15,000 in legal costs. #