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JUDGE (n.) A law student who marks his own papers - H.L. Mencken

"Nearly all men can stand adversity, but if you want to test a man's character, give him power."
- Abraham Lincoln

The Judge files contain background factual data on judges, as well as analysis which is more subjective in nature.  Where analysis and opinion are provided, they are the considered and sole opinion of the editor.  Information and news tips on judges can be sent to Spartan News Limited through various means listed on the 'Contact Us' page.  Information may be submitted anonymously but it would be very helpful if reference or source background can be supplied along with information.

KIWIS FIRST

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NEW ZEALAND SUPREME COURT SPINS ANOTHER FACT

2 August 2012
The absence of an independent bar or arm's length appellate courts in New Zealand allow the Supreme Court to increasingly make it up as it goes.  SEE THE LATEST CASE WHICH HAS SURFACED

 

GLAZEBROOK APPOINTED TO THE SUPREME COURT

31 July 2012
The New Zealand Supreme Court has added a further element of unpredictability with the appointment of Susan Glazebrook by Attorney General Chris Finlayson.  Glazebrook was one of the more emotional and erratic Court of Appeal judges but was also seen generally to be one of the more respectful of human rights.

High Court Justice Christine French was appointed to the Court of Appeal to fill the slot.

 

JUDGE LANCE CRIMINAL TRIAL

15 March 2010   
Former Deputy Judge of the Independent Police Complaints Authority Michael Lance QC will face trial in the North Shore District Court on 24 March 2010 for willful vandalism.  As first reported on kiwisfirst a year ago, Lance was witnessed "keying" the car of businessman Richard Cummins in front of the Judge's Browns Bay apartment by café patrons across the street.  Despite the trial being set for months, the half dozen witnesses were only subpoenaed this weekend. 

Further investigation of Judge Lance after his arrest uncovered a disturbing history of criminal conduct.  This included similar incidents of vandalism where the Judge was questioned but never charged, as well as the Judge throwing a trial in Rotorua of a lawyer charged with fraud and blackmail years earlier.  That lawyer, caught on tape trying to blackmail the detective prosecuting his drug-dealing client, turned out to be the business partner of the Judge's son Simon.  Without disclosing the relationship, Lance had himself appointed trial judge and travelled down from Auckland to preside.  In a brazen display of power, Lance J found the lawyer not guilty and then publicly castigated the police for prosecuting the lawyer.  The lawyer cannot be named because Judge Lance additionally gave him name suppression.

Judge Lance's perversion of the course of justice in the criminal trial of his son's law partner occurred when Supreme Court Judge John McGrath was Solicitor General and Police Complaints Authority Judge Lowell Goddard was Deputy Solicitor General.  Police hierarchy reported and detailed the corruption to the Solicitor General and deputy, but McGrath and Goddard concealed the evidence of Lance's criminal offending from the bench and dismissively stated at the time that prosecution of Judge Lance was "not in the public interest".   At least one high ranking Police inspector quit out of disillusionment.  The important news story was never reported by the NZ media. 

Subsequent Official Information Act requests for this evidence held by the Crown Law office have been stonewalled by claims the evidence is protected by legal privilege.  Appallingly, both Justice McGrath and Justice Goddard gave ringing endorsements to Judge Lance's subsequent promotion to Judge of the Independent Police Complaints Authority.  Judge Lance wasted no time claiming victory over the Police officials who had complained about his criminal conduct to no avail years earlier.

Years after McGrath and Goddard's cover-up of Judge Lance's criminal misconduct on the bench, Judge Lance successfully sued a radio talkbalk host Mark Bennett for defamation after the host called the Judge "idiotic". 

Judge Michael Lance is currently retired.  He is aggressively defending the charge but does not want a jury trial.  The trial should prove interesting even if the New Zealand media are afraid to report it.  BACK TO FRONT PAGE

 

SOLICITOR GENERAL CLAIMS HE IS VICTIM OF CONSPIRACY

15 September 2009
New Zealand Solicitor General David Collins is currently defending at least three unrelated complaints to the New Zealand Law Society for alleged legal misconduct.  One is by kiwisfirst editor Vince Siemer, in relation to representations by Mr Collins to the Auckland High Court in January 2008.  In brief, that complaint alleges Collins knowingly made false claims to initiate a contempt action that the www.kiwisfirst.com website was in breach of an interim injunction, despite his office conceding that the content was "fully compliant" with the injunction terms.  The complaint also alleges that he deliberately misled Parliament by misrepresenting to the Justice and Electoral Select Committee in August 2007 that the matter was before the Courts - and thereby off limits from a Parliamentary inquiry.

Mr Collins has responded by letter dated 3 September 2009 to Secretary of National Standards Committee Mary Ollivier that he considers he is the victim of a conspiracy by Mr Siemer and the other complainants.  Presumably, on this basis, he refused to address the substance of the complaint and supporting evidence in the form of a 6 September 2007 email indicating his office agreed months before that the website was not in breach the injunction.  Ironically Mr Collins used his response to threaten the Law Society with prosecution for contempt of Parliament if he considered the Law Society was "to collaterally challenge" the Select Committee's decision founded on what Speaker of the House Lockwood Smith had subsequently determined "may not have been correct".  Dr Smith's conclusion was reached before he became aware of the documentary evidence that David Collins was personally involved in the deception of the Committee. 

Collins elected to take a global position in his reply.  He appended a copy of the resultant High Court Judgment ordering Siemer to six months prison for failing to "unconditionally close down" this website as defence that his actions in seeking Mr Siemer's imprison were appropriate. back to front page

 

COURT ORDER SILENCES CORONER AND CONCEALS FARDELL SUICIDE FROM PUBLIC      

27 August 2007
Late in July 2007 it was revealed that Auckland High Court Justice Paul Heath ruled last December - more than a year after Robert Fardell QC (right) fell to his death from the 15 metre high Takapuna Head cliffs into the rocky surf at high tide - that the Auckland Coroner's findings and the evidence into the bizarre circumstances of Fardell's death would be largely suppressed.  This Court ruling by Heath J followed prominent barrister Harry Waalken QC obtaining a restraining order in July 2006 preventing the Coroner from releasing his written report while the family sought a judicial review designed to censure and obscure the Coroner's findings.  Unfortunately for Waalken, the cat had already been let out of the bag at a special inquest conducted at the Auckland Coroner's Court in June 2006.  This was when Auckland Coroner Dr. Murray Jamieson issued an oral report stating Mr. Fardell died from drowning, with the post-mortem examination revealing drowning was precipitated by massive injuries consistent with a fall immediately prior. 
 
With foul play and suicide the likely scenarios facing police officers responding to report of a lifeless body on the rocks, foul play must reasonably be ruled out simply on the response of police that day finding a middle-age man unexpectedly dead.  What is known is that the police and ambulance response to the call of a body found 6:30 pm 11 December 2005 as the tide receded was unusually brief for an untimely and, presumably, uncertain cause of death.  Although Mr. Fardell was 52 years old and in good health at the time he died, neither cordoning of the scene nor forensic analysis in-situ was apparently conducted.  The ambulance crew left shortly after inspecting the top of the cliff above where the body was found. Moreover, as Fardell was an extremely heavy-set man who additionally had to breach a fence to reach the edge of the cliff, it is highly unlikely that his fall could have been an accident or murder in this area active with people enjoying the early summer weekend.

Nonetheless, Barrister Waalken vehemently pressed the Coroner that suicide was not a finding the Coroner could legally make - or even mention.  While the Coroner seemed ultimately prepared to delicately acquiesce to Waalken's demands, Waalken's subsequent legal motions that the Coroner permanently seal the evidence and his finding were rejected outright by the Coroner as incompatible with the fundamental precept of transparent proceedings and justice.  It is this ruling by the Coroner that has now been overturned by Auckland High Court Justice Heath.

There has been some speculation, unproven, that Mr. Fardell had a life insurance policy, the death benefit from which may have been lost if the Coroner's findings indicated suicide.  However, it is more likely for reasons that will become apparent deeper in this story that, given the tremendous media exposure to the death, concerns were heightened within the judiciary that allowing the circumstances of the death to be made public would only increase the public's curiosity as to what drove Fardell to such self-destruction.  It was anticipated that attention into the deceased's sordid personal and professional life would then raise legitimate and troubling questions as to how such a person could reach the pinnacle of the legal profession and be next in line for a judicial appointment while those in authority had turned a blind eye to numerous disturbing complaints concerning his professional conduct for several years leading up to his death. 

In the days immediately following his death, the New Zealand Herald ran front page stories claiming that Mr. Fardell died of a heart attack while swimming - irresponsible news reporting easily dispelled by facts that were immediately available to any reporter interested in accuracy.  Other than the location of the body on rocks hundreds of meters from the nearest beach, Mr. Fardell was not dressed for a swim as he walked away from his house for the last time.  The inquest officer assigned to the case said the body was found with shorts and no shoes but that his experience was "articles of clothing quickly get separated from the body in the water".   And as any viewer of CSI can tell you, there are definitive forensic tests to quickly determine whether someone has suffered a fatal heart attack. 

The inquest officer, Paul Herman of the Takapuna Police, immediately realized that he was in over his head on this investigation.  The last person to talk to the deceased was Chris Morris, son of (now retired) High Court judge David Morris.  Chris Morris admitted to Herman that he had come to Fardell's home this Sunday afternoon to discuss pending legal matters with the deceased but declined to grant a formal interview or provide further detail.  Same with the widow.  Also, as the press was widely reporting that ten High Court judges had attended the funeral, the estate hired Barrister Harry Waalken QC, widely regarded as a legal Houdini on medical cases, to advance the family's position on the death - and stymie the investigation.   Faced with such powerful stonewalling Mr. Herman did not need to be a genius to identify that careers are made or lost on how someone might handle himself in an investigation where a litany of prominent lawyers and judges were not only expressing a keen interest in his approach to the investigation but were simultaneously speaking out effusively in the press about what a great man of integrity Mr. Fardell was.

Mr. Fardell undoubtedly had many fine qualities, but integrity was not one of them.  It didn't help that Mr. Herman quite quickly uncovered this darker side to the man.  Herman casually revealed to a private investigator early in his investigation that an Asian gang Fardell had a falling out with were phoning him in an attempt to gain information.  Within a month Herman was also informed that Fardell was being sued in the Auckland High Court for deceptive practices by former clients Paragon Oil Systems Limited and Vince and Jane Siemer, and that an application detailing allegations that Fardell three times perjured himself had been filed and served less than two weeks before his death.  Adding insult to a potentially career-killing injury for Fardell was the fact that Hugh Williams, a judge whom Fardell considered dim-witted and vain and, hence, was an irresistible butt of his jokes, was, as judge in the case, going out of his way to unduly protect Fardell.  Fardell was a proud man whose career and legitimate standing among his peers meant everything to him.  This graft from an unlikely ally whom he had been all too quick to dismiss as unprofessional was a tremendous blow to his ego as much as an inescapable symbol of poetic justice. 
 
Yet another former client, New Zealand inventor Hugh Price, was also embroiled in a legal battle against Fardell before he died.  Mr. Price had years earlier obtained a ruling from the Lay Observer that overruled the Law Society's dismissal of a formal complaint he had lodged against Mr. Fardell for deceptive practices and seeming incompetence.  Despite this ruling of the Lay Observer, the Law Society refused to act on the complaint.  Now, in December 2005, Mr. Price was again challenging Fardell in a current case for acting in a conflict of interest capacity.
 
Topping off all this was Fardell's close personal and business relationship with powerful Auckland insolvency practitioner Michael Stiassny, a relationship he would come to ruefully regret in the weeks before his death   This was due in large part to (what Fardell was obviously convinced to be) an intentional release of information by his former friend that helped expose Fardell's legal scams.  This information put Fardell's career at risk in addition to severely undermining his credibility.  Whether this was the straw in the mountain of straw that broke the camel's back is difficult to say.  However, given the significant betrayal by someone he had put so much trust in, it is not difficult to surmise this weighed heavily on Fardell as he solemnly walked to the precipice this otherwise sunny Sunday.   Ironically, as Stiassny was trustee of the Fardell family trust (Delfar Holdings Limited) at the time of his death Fardell could not escape his clutches even in death. 
 
In this pressure cooker where the powerful legal community's obituary contrasted so sharply with the unfolding facts of the man's real life, Officer Herman did the only thing he considered safe under the circumstances - he went to ground.  As the Coroner's representative, Officer Herman was responsible for publicizing the public inquest.  Despite the tremendous number of contacts he had received from media and financially interested parties, Officer Herman informed only the widow and Harry Waalken QC of the public inquest that he had hastily convened barely 2 months after the death.
 
Officer Herman would arrogantly respond later to those who felt slighted by his subterfuge regarding the public inquest that he was under no obligation to inform interested parties of the date or setting.  This was simply untrue.  The Coroner's Act 1988 specifically required him to notify in advance parties who may have an interest in the inquest.  In the winter of 2006 Judge Borrin issued a ruling on behalf of the Police Complaints Authority of New Zealand stating Herman was derelict in his obligations under the Act.  The Coroner had earlier been compelled to conduct a special inquest due to Herman's railroading of the public one.
 
The year 2006 saw significant changes in law for the Coroner's Office.  The 1988 Act was repealed in favour of the Coroner's Act 2006, which was passed into law in August 2006, and the establishment of the Coronial Services of New Zealand was formed on 1 July 2007.  Perhaps this chaos explains why the Coroner - having a year earlier been ready to issue his written inquest findings before a cease and desist order of the Court prevented him from doing so - released his report on 20 July 2007, seven months after Judge Heath finally gave him the approval to do so - sans the evidence and guts of the report.  Perhaps the Coroner's delay was a demonstration of conscious indignation at the Court imposed coverup. 
 
So it was that what started as a whitewash intended to be quickly disposed of in record time was eventually whitewashed by judicial order more than a year and a half after the fact.  And when one reads the Coroner's brief final report, it is obvious that Mr. Waalken earned his substantial fees on this one.  In legal speak, lawyers deceive by omission.  This is obvious in this case when one reads the Coroner's two page report.  This reporter's favorite line from that report is "No evidence was located to suggest that Mr. Fardell harboured any intention to commit suicide.  Indeed, his work on forthcoming cases suggested to the contrary".  It is as perverse as it is ironic that the Coroner could not write massive injuries from a fall directly contributed to the drowning but was encouraged to get into the highly speculative (let alone non-medical) realm of saying busy people do not have time to commit suicide.  Read Coroner's censured report.  
 
In obvious double-talk the new Coronial Services website states on its' front page, "The (new) Act was designed to enhance public confidence in the integrity and independence of the coronial system."  All too sadly, the net result has proven the opposite true.  BACK TO FRONT PAGE
 
 
 

 

 

 

JUDGE HUBBLE HONOURS HUBBARD AS 'OCCUPIER' OF CITY BUILDINGS

11 September 2007
In a ruling handed down by Auckland District Court Justice GV Hubble today, the Judge recognized the Mayor as 'occupier' of 'the whole of the Council Chambers and its buildings' for the intent and purpose of the Trespass Act 1980.  This means the Mayor has the absolute right in law, according to Judge Hubble, to order people removed from city buildings whose presence the Mayor decides to be objectional or disruptive - or if he has good reason to believe they might become so - so long as he does not act 'capriciously' in doing so. 

Judge Hubble's ruling found community activist Penny Bright guilty of crimimal trespass and discharged her without sentence, saying that she was well meaning and had suffered enough.  The case stems from a 23 November 2006 Council Meeting called under urgency to consider a new waterfront stadium in Auckland.   Hubbard had denied Ms. Bright speaking rights at the meeting.   Ms. Bright demonstrated her displeasure with the Mayor's refusal by displaying a 1 by 1.5 metre banner in the public gallery that read "Mayor Hubbard's DICKtatorship is a CEREAL matter - Don't Buy it".   The Mayor demanded she put the banner away but Ms. Bright refused; this refusal prompting the Mayor to temporarily adjourn the meeting while he summoned Police.  By the time Police came the banner was gone but, when Ms. Bright refused to leave the meeting, the Mayor had her arrested for trespassing.  The stadium proposal pushed by Hubbard eventually failed.  The case of criminal trespass against Ms. Bright was pursued by the Crown at the Mayor's urging. 

The mild-mannered Hubble appeared reticient in issuing his judgment.  His decision ran contrary to three previous District Court rulings that had favoured Ms. Bright in similar circumstances.  Still Hubble remarkably praised Ms. Bright and, in response to Ms. Bright submissions ahead of the sentencing, said he agreed with all the points she made.  The difference this time, according to the Judge, was the Mayor found the banner justifiably objectionable.   The Judge agreed.

With his judgment today Hubble also strayed further than previous District Court judges in ruling the Mayor was the rightful 'occupier' of the City building and, as such, was within his right to demand people being disruptive or guilty of objectionable conduct be cited for criminal trespass if they failed to leave when ordered to do so.  Paradoxically the Judge recognized the public's right to access public buildings and attend public meetings.  He therefore qualified his judgment by stating the Mayor, as occupier, had this right "provided that occupier is not acting capriciously or on the basis of racial or other prejudice".   Mayor Hubbard's actions, which included refusing Ms. Bright speaking rights on a number of previous and subsequent occasions, were apparently not deemed prejudicial by Judge Hubble due to His Honour's failure to mention this evidence in his judgment.  The Judge also did not seem to mind that neither the Police constable nor Auckland Council Service's Manager Peter Burden could recall whether they had specifically issued a trespass warning to Ms. Bright before arresting her.  The case included prosecution submissions and defense submissions  

Given the stigma of a criminal conviction, Ms. Bright said she is determined to appeal Judge Hubble's decision.  Back to front page

 

 

 

 

 

 

 

 

 

 

New Zealand Judge files

Information on New Zealand Judges compiled from public and private sources, including all information submitted by the judges themselves

BREWER, Timothy       Justice of the Auckland High Court 

Professional Data                 2010 Judge Survey Score (1-10)     
                                               Ranking (out of 60)

Postion & Titles:  Officer of the New Zealand Order of Merit
Judge of: High Court, Auckland          Appointed  2010
Specializations and Professional Interests: Former Crown prosecutor   -  Taranaki connections
Professional Comments:

No-nonsense judge who, while new on the bench, differs from his cohorts to the extent that he is punctual and will not hesitate to proceed with a matter if counsel is late.  

One of an abudance of former Crown prosecutors appointed to the bench.  Short on personal rights, stauch on law and order but has been surprisingly fair since his recent appointment when it comes to State interests given his background.

 

Background / Education:

Justice Timothy Brewer graduated LL.B (Honours, 1st class) from Victoria University in 1979. He was admitted to the Bar in 1980.  Between 1980 and 1987 he practised predominantly commercial and property law at Govett Quilliam, New Plymouth.

Justice Brewer was then appointed New Plymouth Crown Solicitor, an appointment he held from 1988-2010.  From 1990-2010 he was the senior litigation partner in the firm which became Auld Brewer Mazengarb & McEwen. From 1997-2001 he was a part-time Commissioner of the Law Commission.

As a Crown lawyer, Justice Brewer was behind the unlawful cover-up of NZ Army culpability in the 1994 Te Rata (Berryman) bridge collapse which resulted in the wrongful death of beekeeper Kenneth Richards.  Brewer had the engineer's investigative report (the Butcher Report) into the collapse materially altered to expunge reference to the poor construction by the NZ Army just eight years earlier.

Justice Brewer joined the Territorial Force of the New Zealand Army in 1976;  appointed a member of the Courts Martial Panel of Advocates in 2001;  Judge-Advocate from 2004-2009 and a Judge of the Court Martial of New Zealand from 2009.  He retired in 2009 as Director-General Reserve Forces with the rank of Brigadier.

Justice Brewer was appointed an Officer of the New Zealand Order of Merit in 2003.

Degrees: LLB (Honours, 1st class)  Victoria University, 1979
Admitted to the Bar: 1980
Company Involvements:
 

Personal Data

Born: 1957 Sex: Male
Married:   Children:  4
Interesting Relationships and Coincidences:

  Miscellaneous:  This from an interview from his local rag when Justice Brewer was appointed to the High Court:

"Justice Timothy Brewer was given just minutes to decide if he would become a judge in the High Court of New Zealand.
Justice Brewer was in New Plymouth on Friday to preside over a ceremony to admit seven young lawyers to the bar.
Before the ceremony, he revealed that one Saturday morning about seven weeks ago he was eating breakfast when the phone call came from the Attorney-General, Christopher Finlayson, offering him the Auckland position.
"He called home and I was just eating my toast and he said, `we have an appointment in Auckland, yes or no'."
The answer was `yes' and in less than 10 days, Taranaki's Crown solicitor, Tim Brewer, was sworn in, resplendent in "The Reds" the ceremonial dress of a 14th Century courtier, to become the most junior of the country's 33 High Court judges.
While interviews with High Court judges are rare, Justice Brewer was agreeable to sharing with the Taranaki Daily News his initial insight into the new job.
Taranaki's former Crown solicitor for 22 years and senior partner at Auld Brewer Mazengarb and McEwan says his life is now fully emersed in law.
"The new job is certainly very interesting ? and a great change from private practice."
Gone are the worries of dealing with administration, clients, partners and staff.
"I'm not running a business and I can devote as much time to a task as is needed to get it right. I'm enjoying it."
The days are long.
"The first impression is that it is very hard work. All of the judges work 10 to 12 hour days pretty much all of the time. But all I have to do is practise law. It's much less stressful."
He has been surprised to find himself in court nearly every day and facing a wide variety of cases, most of them civil, and covering all facets of life.
"The law involves every activity humans do. If you have a dispute it can find its way to the High Court.
"In the five weeks in the job I've dealt with immigration issues ? whether someone is entitled to refugee status, I had to decide if a multimillion-dollar nightclub went ahead, decide how to split a million-dollar marriage property settlement between husband and wife, decide on bail appeals, sentence a man for raping children in the 1980s, preside over an attempted murder trial and a trial involving the Auckland underworld."
As a result, he is grateful that his background as a Crown solicitor gave him experience across both criminal and civil practice.
Justice Brewer says in the short time, he has also become more sensitive to the criticism meted out to sentencing judges.
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"I think people don't understand how judges sentence. You read in the paper and see on TV lots of criticism of sentences and now I am a judge it affects you more.
"But judges can't just wave their hand and say you are a bad person, I'm going to keep you in jail until you die. A judge has to sentence according to the law. It takes a lot of time working out the law in the case."
His former life has also helped maintain control during sentencings which are invariably charged with emotion. The judge was the one person in court whose role is to remain dispassionate and without emotion as others succumb.
Justice Brewer describes his sentencing of a man to 10 years' jail after he pleaded guilty to raping nine girls 30 years ago.
The victims had stood to read out their statements to the court and told how their lives had been affected "as though it had happened yesterday", he said.
A man who came to court with his teenage children to support the accused and ask that he not be jailed, had broken down when he heard Justice Brewer summarise what his friend had done.
"He was a big tough guy and he burst into tears."
With that, he and the whole family rose and left the court.
"For the first time he realised what had happened."
While not immune to emotion himself, he is grateful for his 30 years in practice at the bar and experience as a Crown solicitor that allows him to deal with it.
In his former life as a one-star general, the then Brigadier Brewer last year travelled to Afghanistan on behalf of the New Zealand Defence Force. Now, as Justice Brewer it is off-limits for him to comment about the recent death of a New Zealand soldier.
His family of six is now mulling the difficult decision about when to sell their New Plymouth home of 20 years.
He is currently renting a flat in Auckland across from the court. "The whole flat is the size of my living room at home. So at some point we will sell the house and move to Auckland. I could be in Auckland for 20 years."
Because of his close connection with the Taranaki justice system, Justice Brewer will not sit on the bench in the High Court in New Plymouth for about a year.
Until then, his circuit will include Auckland, Whangarei, Rotorua, Hamilton and Gisborne."

 

 

 

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.  It is well-established law that Courts are required to issue judgments when dealing with legal and factual disputes which fundamentally impact the progress of a court proceeding.  This 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.
 
Two elements seem to be driving the increasing use of Minutes in place of Judgments.   In short, the practice is vested in the Judges' adopted powers to control how they operate and to do so in the very private manner they prefer as a group.  It is a practice which extends all the way to the Supreme Court and has its roots in the Rules Committee.
 
The private Rules Committee seeks to advance judicial independence by implementing rules which allow judges wide discretion in everything from restricting the use of juries and imposing discretionary financial barriers to court access, to operating with total immunity and striking out claims without notice to any party.  The Rules Committee is ostensibly a statutory body comprised of select Judges and Crown lawyers which exists to formulate rules which secure the just, speedy and inexpensive determination of proceedings.  In recent years it has acted as a judicial lobby, telling Parliament the Judiciary will not be constrained by statute when it comes to conducting its own affairs.  As a result, Judges operate without a professional code of conduct, are not required to provide a register of their financial interests and have declared their public actions are immune from the primary purpose of the Public Records Act 2005 in "ensuring that full and accurate records of the affairs of central and local government are created and maintained".  
 
As we saw with the Judicial Conduct Commissioner's recommendation last year that the Attorney General appoint a Judicial Conduct Panel to investigate former Supreme Court Justice Bill Wilson's conflict of interest in the Saxmere v Wool Board case, the Judges even managed to maintain the power to knock recommendations back from this lone oversight body.  Justices Graham Lang and John Wild quashed the JCC's recommendation last year, sending the matter back to the JCC for reconsideration.  Even though the Supreme Court reversed itself, ultimately conceding Justice Wilson had an undisclosed conflict of interest in November 2009 ruling, the Court refused to consider s 4 (2)a of the Judicature Act which required judges to get approval from the Chief High Court Judge before engaging in outside employment or office.
 
As for the value placed on privacy over transparency, suppression orders have become so pervasive in the last few years that the Judge no longer has to make the suppression part of their order - let alone give reasons for it.  The courts now routinely put standard suppression wording on the cover page where the Judge wishes to keep their decision private.
 
The use of Minutes adds another layer of secrecy.  By issuing a Minute instead of a Judgment, the Judge is able to operate largely under the radar of lawyers and law reports.  Legal reporting agencies such as Lexis Nexis do not ordinarily publish results of Minutes.  This is because Minutes are supposed to be used to record routine procedural directions or merely record events.
 
Two cases where the New Zealand Supreme Court used a Minute where a Judgment was appropriate illustrate the danger such lack of transparency has to the rule of law.  In Gregory v Gollan SC4/2009, the Supreme Court ruled that New Zealand legislation made it clear trial by jury in a civil matter could only occur if judges use their discretion to order it.  When counsel subsequently pointed out the legislation (s19A(2) of the Judicature Act 1908) actually stated that either party could "require" a trial by jury and asked for the Court to correct its judgment, the Supreme Court issued a Minute dismissing this appeal.  The law violation and the Court's absence of reasons for stating the law was the opposite of what it is did not get reported.  The judicial fiat stands, in ongoing contradiction to the rule of law in New Zealand.
 
The second case was Siemer v Solicitor General SC48/2009.  The Court quashed the lower court rulings and issued a new judgment and committal penalty based entirely on submissions of Crown counsel.  When a formal recall application was made, with evidence proving that Crown counsel Madeleine Laracy had materially altered the publications in her submissions upon which the Supreme Court then relied to convict, the full bench issued a Minute which claimed the recall application "raises no matter which has not previously been considered in relation to the appeal and is dismissed".  That the five highest judges in New Zealand relied upon submissions they tacitly admitted to knowing were materially false went unreported.  
 
Contrast the above with the Supreme Court's recall judgment in Saxmere.  After initially issuing a judgment which concluded Justice Wilson did not have an apparent conflict of interest, the Supreme Court was prevented from dispensing with the recall application from Saxmere by way of a Minute.  This was because of widespread public releases of the evidence of Wilson J's financial indebtedness to Wool Board's counsel Alan Galbraith QC, and Galbraith's pressure on the cash-strapped Judge to pay up in the lead up to the appeal hearing where Wilson presided.   Saxmere's counsel Sue Grey has since said she is convinced the Supreme Court would have tried to bury the recall and evidence if public awareness had been absent.  As it turned out, the Supreme Court issued a press release along with the November 2009 judgment reversing its earlier finding.
 
This month the Supreme Court again is set to consider the legality of using Minutes to decide the fate of cases.  SC8/2011 is an appeal of a High Court Judge striking out an application to vary or set aside an injunction by way of administrative Minute.  The other side had not opposed the application and the Judge gave no notice before or after his purported action.  His decision came to light almost three months later after an inquiry as to when the hearing might be scheduled.  The Court of Appeal subsequently refused to allow leave to appeal against the strike out by the judge, stating r 15.1 of the High Court Rules allows a judge broad discretion to strike out all or part of a proceeding regardless of whether they have an application to do so.  The Court of Appeal did not address the crucial legal question as to whether such extreme judicial action can be effected by judicial Minute, without notice to the parties. 

With so much secrecy at stake, insiders are concerned about the Supreme Court's ability to deal forthrightly with the practice.  If nothing else, it should prove entertaining how the Supreme Court chooses to address or evade the legality of Minutes to decide cases in New Zealand.  (Back to Front Page)
 

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