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.
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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
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.
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
'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
2010 Judge Survey Score (1-10)
Ranking (out of 60)
Postion & Titles:
Queen's Counsel, Member of
New Zealand Society Legislation
High Court, since August 2007
Specializations and Professional Interests:
Peter's CV states his expertise in civil and commercial law includes the fields of administrative law and judicial review, constitutional and public law, contracts, company law equity, injunctions, insolvency, land law and property sales, negligence, relationship property, sale of goods and product liability, statutes and legislation, torts, trusts, estates and wills
Member of the old-boys' club. Bench performance too new to rate but we are interested in feedback from those who appear before him.
Background / Education:
Hails from Bankside Chambers in Auckland. Peter's CV claims specialties in both civil and commercial litigation and in advising on dispute resolution. His early career saw Peter as a litigation partner at the firm of Glaister Ennor in Auckland for 17 years. He became a barrister sole in 1993. Became a Queen's Counsel in 2002. From 1997 to 2004 he was a member and convenor of the New Zealand Law Society Legislation Committee, reviewing proposed legislation and submissions to Parliament.
BA (Political Studies) LLB (Hons) Auckland, 1975
Admitted to the Bar:
Interesting Relationships and Coincidences:
Claims rudimentary understanding of French
ASHER LATEST JUDGE TO CONTRAVENE PUBLIC RECORDS ACT 2005
8 March 2009
Auckland High Court Judge Raynor Asher (pictured left in a 10 year old photo) has refused to provide a record of proceedings involving public watchdog Penny Bright appealing a District Court decision of Justice Cadenhead. Last year, Auckland City Council took Ms Bright to Court for refusing to pay her
residential property rates. Ms Bright defence was that her rates were 'disputed' and counterclaimed that ACC violated its statutory duty to uphold 'open, transparent and democratically accountable' local government by refusing to divulge where over $850 million was being spent on private sector providers of 'goods, services and people'. Cadenhead J sided with ACC and struck out her defence and counterclaim.
In a preliminary blow to Ms Bright's appeal, Asher J ostensibly sided with ACC on the absence of merit in a 20 February 2009 Judgment where he ordered she must pay security for costs before her appeal can proceed. In contrast, on the merit question, the Parliamentary Select Committee on Local Government and Environment seems to be taking a more considered approach on the question of expenditures to the private sector by local councils by currently investigating
Petition 2008/002 of Penelope Mary Bright and others, and requesting submissions.
Local councils have long relied on arguments that disclosure of private sector contract details compromises confidentiality with those contractors, as well as greatly increases the cost of administration and reporting. Ms Bright responded
"Publishing details of contracts issued in Council Annual Reports is not intended to add thousands of pages, containing every word written for every contract issued. All that is required is: the name of the contracting company, the dollar value of the contract, the term of the contract and general scope of the contract." Ms Bright adds that the
Public Records Act 2005 requires such records already, and computerised filing and reference numbering streamlines access.
The views of a
Royal Commission of Inquiry into local governance issues conducted last year are not yet out but are expected to further define the responsibilities of local councils. Ms Bright has stated that if Parliament "the highest court in the land" sees sufficient value in her principles to consider possible legislative change, it is preposterous that the judiciary can say there is no merit.
Again invoking the
Public Records Act 2005, Ms Bright three times requested from the High Court a transcript of the audio-record of a hearing on 18 February 2009 where ACC's lawyers Meredith McConnell were successful in getting the order. ACC's application cited two grounds: that Ms Bright had not shown the inability to pay a security and her appeal did not have merit.
Ms Bright wants the audio-transcript because both grounds were shown to be unfounded before Judge Asher at the hearing. ACC's lawyer Gareth
Kayes admitted in Court that Ms Bright had had some success in Parliament on the issue, but claimed "she should stay with that course". In response to the Judge's question as to evidence of her impecuniousness (financial hardship), Ms Bright cited her sworn fee waiver request in the appeal, granted by the Registrar on the basis of her impecuniousness. Neither was mentioned by Asher J in his Judgment, a judgment that awarded a further $1,000 costs against Ms Bright.
The irony is that, if Ms Bright was on a benefit or legal aid, security for costs could not be imposed. Ms Bright's pride in being a 'self-funded public watchdog' has caused her to shun government aid.
Judge Asher has repeatedly rejected Bright's request for the Court transcript of proceedings he only reluctantly allowed to be recorded. In a further 'Judgment' dated 3 March 2009, Asher J gave as his reason
"the application pre-supposes that comments or statements made at the hearing were evidence, whereas in fact they were only submissions. There is no suggestion of any dispute between the parties about what was said in the submissions." To which Ms Bright responded that, according to Asher's reasoning, the Judge's decision itself was
"based on no evidence". "Whether the judge wishes to cleverly label it something other than evidence at the hearing, it is certainly evidence on the appeal of his Judgment. The Judge needs to get up to speed with the Public Records Act 2005." Back to front page
STRATFORD RACING CLUB NUMBERS DECIDED BY COURT OF APPEAL
20 May 2008 by Vincent Middeldorp
In the recent Zimbabwe elections, ballot boxes were brought into police headquarters in the capital Harare where ballot papers for Robert Mugabe were added and ballots for Morgan Tsvangirai removed. Two weeks later in New Zealand, the Court of Appeal condoned a much better system for rigging election outcomes; albeit not for the Presidency of the country.
In a decision on Stratford Racing Club Inc & Anor v Adlam CA CA84/07 [18 April 2008] the Court of Appeal ruled the racing club's committee had acted "unlawfully" by voting against a deluge of new membership applicants, upholding an earlier High Court ruling brought against the Stratford Racing Club by Cedric (Sid) Adlam.
The Court of Appeal decision made the NZ Courts the port of call for any club with a disgruntled minority who attempt to acquire majority control by flooding the affected club with new membership applications from their cronies. The Court's decision has effectively taken membership approvals out of the hands of those clubs open to new memberships. The decision potentially affects bowling clubs, tennis clubs, RSA clubs, Cosmopolitan clubs, football clubs, cricket clubs, volunteer service groups and every other club and society in the country.
The Courts have said that applicants who are "fit and proper" persons, even those who are unashamedly applying to join because they have an agenda centred on some beef with the existing committee or want to change the policy of the club, cannot be excluded from membership.
The situation at the Stratford Racing Club that led to this decision began when a minority decided the club membership was so low they could enrol enough associates to throw out the club's elected committee, and ride roughshod over the wishes of the existing majority membership. In particular, they wanted to decrease the amount they were required to pay to use the club's facilities and they wanted unhampered use of the racecourse for training gallops; something a previous racecourse caretaker had allowed but had since been curtailed because of the damage caused to the grass surface of the racecourse. The minority group also decided they needed to invalidate the transfer of the racecourse into a trust set up to protect the property from going the way of other central districts racecourses, such as Marton, Bulls and Fielding; all of which have been closed down and sold. Clauses such as,
"this land holding asset remains owned by and for the benefit of the local Stratford community" and the trustees must,
"maintain the property as a freehold and debt-free asset," were written into the deed of trust to thwart any sale of the property.
The Court of Appeal decision records that transferring the property into a trust was a unanimous decision made at the Club's AGM in 1999. Sid Adlam was not a member of the club in 1999 when the decision to set up the trust was made.
The membership saga began in August 2002, when the Stratford Racing Club committee voted on 34 membership applications and in the following month on 15 applications. The applications were all nominated and seconded by the same few members. In each case the applicant failed to get elected to the club. A second wave of 54 membership applications were received in 2005, an overwhelming number for a club with 105 members. When their coup d'état failed, the shunned minority ventured to the High Court where, in February 2007, they won a judgement in their favour. The High Court said the committee's voting was "unlawful," not because of a voting irregularity such as people voting twice, but because committee members had voted "no" instead of "yes" on the membership applications.
The Court boldly wrote in their decision that the members of the committee had voted for, "perpetuating the existing committee's control of the club." Reasons such as applicants being seen as "here today - gone tomorrow" types, or people whose character would not have been known by those putting them forward as members, were apparently rejected. No one on the committee was put on a witness stand and asked why they voted against the membership applications. The Court had no way of knowing why the individuals on the committee voted the way they did.
The Stratford Racing Club took the matter to the Court of Appeal for a variety of reasons, not the least of which was that they could see how the High Court decision affected clubs and societies all over New Zealand. Common sense suggested the High Court decision would be overturned, but the Court of Appeal endorsed the judgment from the High Court, saying that because the club needed members, it must accept all fit and proper applicants.
When the Court of Appeal turned its attentions to the issue of the racecourse property being transferred to the Te Kapua Park Trust, it ruled that the transfer "invalid" because it was contrary to the aims and objectives of the club. The objective cited says the club exists, "
To carry on horse racing in New Zealand in accordance with the Rules of Racing, and to donate prizes and trophies in regard to the same." The Court of Appeal based its decision on a mistaken belief that if Te Kapua Trustees did not provide the Club with the racecourse facility, then the club would not be able to hold any race meetings. The learned Judges seemingly ignored that New Zealand has 65 racing clubs and 52 racecourses. Clubs race on venues owned by other clubs every week.
As a result of the Court of Appeal decision, the Te Kapua Trust will now have to make arrangements to transfer the racecourse property back to the Stratford Racing Club. The Court of Appeal also completed failed to appreciate the very real threat of closure posed by the body which controls thoroughbred racing in New Zealand. In its decision, the Court dismissively wrote,
"In 1998, some members of the club got it into their heads there was a risk that the club would be forced to sell the race-course and hand over the proceeds to New Zealand Thoroughbred Racing ("NZTR")."
The reality is that NZTR is aggressively looking at ways to reduce the number of thoroughbred racing venues and have engaged a consultant to prepare a report on the selling of the Hawera Racecourse. The fact that NZTR don't own the property hasn't stopped them from engaging their consultant.
Certain members on the NZTR board are also currently supporting the sale proposal in a report from Ferrier Hodgson which describes the Avondale racecourse in Auckland as a "land bank" and sets out two options; one of which is that the racecourse is sold.
Heavy pressure originating from NZTR, such as denying them race day licences, is likely to be placed on the Avondale Jockey Club in the next few years, to force them to sell their property and hold future race meetings at either Ellerslie or Pukekohe.
Because members of the Stratford committee have, according to first the High Court and now the Court of Appeal, acted unlawfully when given the option of voting "yes" or "no" and chosen to vote "no," NZTR says racing has been brought into disrepute. That constitutes a serious racing office and carries fines of up to $25,000.
NZTR have formally charged five Stratford Committee members under the Rules of Racing but have not yet set a date for the hearing.
The hearing will be conducted by racing's Judicial Control Authority (JCA). They will almost certainly be intimidated by the High Court and Court of Appeal decisions and will find all those charged guilty. Being heavily fined is the price the elected club committee will pay for giving up their free time to serve on the committee of their local racing club. If the Stratford case becomes common knowledge, individuals will be disinclined to serve on racing club committees around the country knowing it is a job providing no financial remuneration and entailing the risk of fines running into thousands of dollars. If honest, ordinary, well meaning people decide not to serve on club committees the fallout from the events at Stratford could lead to the demise of the racing club model that has operated successfully in New Zealand for the last 150 years. # BACK TO FRONT PAGE
NEW ZEALAND HERALD INTERVIEWS
(continued from front page)
29 October 2010
Ms Collins is “acting” A-G because the actual A-G, Chris Finlayson, made submissions on behalf of the New Zealand government to the Supreme Court defending Wilson’s reckless conflicts. Finlayson was the ex-judge’s junior counsel at Bell Gully. Finlayson also told fellow MP Colin King that he would never abandon his friend and mentor Wilson.
Poor Willy was defiant when addressing why he failed to disqualify himself before ruling for his business partner in one appeal and the bank he owed over a million dollars to on floating terms in the other:
“Let’s be absolutely clear. What is conflict of interest? It is when you have an interest in the outcome of the case.”
Damn it; everyone knew the Judge was neither the plaintiff nor the defendant in the case he was deciding. Why was he persecuted so?
The ex-judge did confirm what
kiwisfirst has been reporting for many months, but the mainstream media has roundly ignored. If Wilson had a conflict of interest, so too did the Chief Justice of the Supreme Court. In fact, kiwisfirst has reported repeatedly that Justice Sian Elias’ conflict was greater than Wilson’s in congregate. It was noted that the Supreme Court even refused to rule on Section 4 (2a) of the Judicature Act (restricting judges’ commercial endeavours) in
Saxmere v Disco because CJ Elias was perhaps the most egregious violator of one of the few laws in New Zealand which govern judicial conduct.
When you consider this, Wilson has a right to be mad. But not nearly so much as the New Zealand public, who are oblivious to the faint hissing sound which occurs when businesses pull out of New Zealand because they know they cannot trust the old boy judges here to give them a fair shake.
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