General

Partisanship and Judicial Bias Questioned

The Supreme Court of New Zealand will not allow public access to applications and submissions to this, New Zealand’s highest court.  But why?

 

Consider the recent disguised appeal of Rabson v Judicial Conduct Commissioner & Ors SC21/2017  and the most fundamental tenet of law – that no one should be a judge in his own cause.  Underlying this appeal, Sian Elias CJ and William Young J sought and obtained an order of costs in their personal favour in the High Court as Second Respondents, then instructed counsel to oppose appeal of this costs order at the Supreme Court.  As presiding judges they then agreed with their counsel, ruling the appeal be dismissed.  In their Judgment Justices Elias and Young incorrectly stated the appeal was against a strike out order (an accompanying order which was never opposed).  They made no mention of the unreasoned and alleged unlawful Court of Appeal costs ruling in their favour, which was the sole issue appealed.

 

Subsequent Supreme Court recall rulings in Rabson turned from misleading to odd after the appellant filed an application for recall on two grounds:

1) Justices Elias and Young were guilty of actual bias, having ruled in their own cause in favour of counsel they instructed to oppose the appeal (the first respondent was unaffected by the costs order).   They were active parties ruling in favour of their own submissions.  Moreover, the judges fatally failed to address their actual bias in circumstances where perceived bias is the threshold for judge disqualification, and

2) These Judges had misstated the ground of appeal as being against their being struck out as respondents, obscuring the financial award in their personal favour which was the only order appealed against.

 

Their odd reaction to this recall application in a moment.

 

As backdrop, it was late December 2015 the full Supreme Court met in private, off the record, without application, notice or hearing from any party in Greer v Smith [2015] NZSC 196 to declare any judge of their court can prevent public access to the Court record – and such chamber’s rulings are unappealable.  Both rulings conflicted with existing NZ and English law.

 

The original Supreme Court ruling Greer v Smith [2015] NZSC 136 concerned an appeal relating to then-High Court Justice Lowell Goddard‘s dismissal of a Habeas Corpus application by chambers ‘minute’ and off the record.[1]  That Justice Goddard dismissed a Habeas Corpus application privately from her chambers was particularly touchy for NZ jurisprudence at the time because the Honourable Dame Justice Lowell Goddard had just been appointed head of the U.K. Inquiry into Child Sexual Abuse and was advocated by Atty-General Finlayson as the foremost human rights judge in New Zealand.  This was before Goddard self-destructed in a very public display of incompetence and multiple allegations of racism.[2]

 

The upshot is the unanimous Supreme Court of NZ in Greer declared ex parte it was within their “inherent judicial control” [3] to prevent public access to court records on the ground their court was created[4] after Parliament passed legislation in 1973 and 1974 which required public access to civil and criminal court records respectively.

 

While no party was heard from, no record was kept and no notice or hearing occurred, the Greer Judgment claimed the Court did hear from a non-party and prior-declared vexatious litigant, Vince Siemer.  Mr Siemer disputed this and swore an affidavit stating he only made a request to access this public court file and was not given any notice the court had convened off the record and in no way participated in the prelude of the judicial fiat which followed.

 

Mr Rabson filed a misconduct complaint to the Judicial Conduct Commissioner against the Supreme Court judges for engaging in activities off the record AND on an issue not before any Court (the judges subsequently admitted no record was kept, no notice given and none of the parties were heard from).[5]

 

The Judicial Conduct Commissioner claimed a lack of jurisdiction to consider the complaint on his interpretation it was a judicial decision to operate outside the law.  Under s8(2) of the Judicial Conduct Commissioner and Judicial Panel Act 2004 judicial misconduct relating to a judicial decision cannot be questioned.

 

Mr Rabson judicially reviewed the JCC on the ground the Commissioner’s interpretation of the limits of his authority under the Act was wrong.

 

The Supreme Court judges who convened privately and off the record to issue the edict in Greer were thus named as interested parties, an action which section 9 of the Judicature Amendment Act 1972 requires.

 

The Supreme Court judges instructed counsel to apply to have their names removed.  Their application was unopposed, but they still sought court costs and Williams J issued an unreasoned costs order [6] granting their request.

 

The matter was appealed to the Court of Appeal where Brown J issued the summary ruling[7] “In my view, the appeal brought by the appellant is not reasonably arguable. The justices of the Supreme Court should not have been cited as second respondents in the High Court proceeding.”

 

This decision was in conflict with section 9 of the Judicature Amendment Act 1972 which requires all parties to any decision being reviewed to be named as second respondents in any judicial review. As in the High Court, the Court of Appeal judge gave no reasons for his “view” other than to say judges had been removed from previous judicial reviews.  Nor did he address the statutory requirement of section 9 which mandated they be named respondents.

 

Another curiosity was Elias and Young JJ took an active role in the proceedings and did not utilise the informal mechanism provided by section 10 of the Judicature Amendment Act 1972 to be removed as parties (i.e. they did not need to seek a hearing).  Neither did they abide in the proceeding, which is customary in judicial reviews.  Rather, they sought through counsel to financially attack the appellant for following a statutory requirement which binds every applicant to judicial review.  No one has disputed this and no judge in 3 consecutive courts addressed the legal conflict of the unreasoned costs award with section 9 of the Judicature Amendment Act 1972.

 

If you wonder whether it could possibly get worse, brace yourself.   When Rabson filed a recall application on grounds Elias and Young JJ were actually biased, having ruled in favour of themselves and failing to address their actual bias, Elias and Young JJ ruled [8] the defence of “doctrine of necessity”[9] required them to rule in their own cause.   That is right: They relied upon a law which does not exist to support a judge ruling in favour of their own interests!

 

Relevantly the Supreme Court ruled in Akulue v R [2013] NZSC 88 the doctrine of necessity could not be relied upon as a criminal defence even when someone threatens to kidnap and kill your family if you refuse to commit the crime.  In short, they adopted a criminal defence for their own actions which they had previously rejected as a defence for criminals!  And they did so without giving any reasons why.

 

It is dishonourable for Supreme Court of New Zealand judges to dismiss appeals which run contrary to their personal interests.   But it rises to a level of inanity and insult when they misstate the ground of appeal put to them in circumstances where they prevent public access to the court record which underpins the judgment.  The Supreme Court judges have yet to explain in Rabson why they have not come clean to properly record this was an appeal of a costs judgment made in their personal favour they had dismissed.  When the New Zealand public wakes up and demands public access to court records much of this chicanery will evaporate with the cloud of obscurity which currently plagues New Zealand’s highest court because judges will no longer be able to play Humpty Dumpty in secret with the lives of the honest people of New Zealand.

 

[1] Footnote “3” in Greer v Smith [2015] NZSC 136

[2] http://www.newshub.co.nz/home/new-zealand/2016/10/nz-judge-dame-lowell-goddard-asked-to-front-over-racism-allegations.html

[3] At [6] and [7]

[4] The Supreme Court of New Zealand replaced the Privy Council as the court of last resort with passage of the Supreme Court Act 2003

[5] “Minute of O’Regan J (Application for Access to Court Documents)” dated 28 October 2016 (unrecorded), at [3] and Minute of the (full) Court (unreported) dated 25 November 2016, at [1] (e).

[6] Minute of Williams J (unreported), Rabson v JCC and others CIV2016 485 781, dated 1 November 2016

[7] [2017] NZCA 44

[8] SC21/2017 [2017] NZSC 96

[9] Ibid, at [2]

Supreme Mystery Surrounds Rare Order

On 6 April 2016, a three-judge panel issued a Supreme Court judgment which directed the Registrar refuse filing of further applications from an appellant.  The action appears designed to insulate a 2015 ruling by Court of Appeal Justice Rhys Harrison.

 

According to the judgment, it is the fourth ruling of the Supreme Court in the matter SC105/2015 Creser v Creser.  None identified the ground of appeal Mr Creser sought to raise.  The judgment refers specifically to a 10 March 2016 judgment not made public by the Registry.  The judgment provided no reasons for the off-record judgment nor for the ban against further filings other than to state “The Applicant’s conduct in relation to the judgment of Harrison J is an abuse of process; hence the direction in the order band.”  The alleged abusive conduct is not identified.

 

Intriguingly, the judgment failed also to identify the grounds it dismissed.  Mr Creser’s response is the judgment dismissed his application which sought the 10 March judgment be publicly recorded to comply with the Public Records Act 2005, as well as for reasons to be provided for the dismissal where none had been.  He has offered a copy of his application to demonstrate the Supreme Court considers such requests for basic transparency makes it a victim and those who ask for it ‘abusers’.

 

Similarly, Creser’s earlier application which resulted in the Supreme Court’s unpublished 10 March dismissal sought the 10 February 2016 judgment be recalled to record the Appellant’s ground of appeal against Court of Appeal Judge Rhys Harrison was “judge incapacitation”.

 

In that ruling [2015] NZCA 416, Harrison doubted Court of Appeal judges had jurisdiction to review decisions of its registrars to reject filings, doubted whether Mr Creser’s application constituted an application under the Rules and misstated Mr Creser’s appeal as an attempt to “amend” an earlier judgment when Cresr was seeking to “enforce” it.

 

Mr Creser’s application to the Supreme Court said it is not possible for a sane and rational judge to doubt a judicial jurisdiction routinely exercised at the Court of Appeal, then doubt common definitions under its own rules as to what constitutes an application and finally confuse his only ground in a three page application to the Court of Appeal.   Individually, or certainly together, these conclusions demonstrated judge incapacitation according to Creser’s original application.

 

The Supreme Court did not label the allegations and evidence scandalous.  Yet it has steadfastly refused to mention, let alone address, Creser’s single ground of appeal.  The evasion has left the legal community and public in the dark that this crucial question of a prominent judge’s basic fitness has been raised despite repeated attempts at vetting the evidence in the nation’s highest court.

 

One irony of the subterfuge is that whenever Parliament has considered proposed legislation which might make the judicial process in New Zealand more transparent and its judges accountable, the judges currently on the Supreme Court have vigorously opposed the proposed bills on grounds they are already accountable to themselves and to the public as a result of “the high visibility process” they operate in and the “rule of law requirement” that they provide reasons for their rulings.  In their 2003 response to the Judicial Matters Bill then before Parliament, New Zealand judges made a joint submission stating “(accountability is already) supported by the principle of open justice and the requirement now hardening into a rule of law, that judges give reasons for decision of any moment.  The openness of the judicial process reduces the prospect of misconduct and of it going unremarked and unchecked.”

 

Then again in 2011, in submissions to the Justice and Electoral Select Committee which claimed to have the support of every judge in New Zealand, the Acting Chief Justice of the Supreme Court represented the judicial process is a high visibility process: hearings are conducted in public and judges must give reasons for their decisions, which will be subject to appeal. These features of the judicial process impose an important discipline on judges and provide an effective protection against arbitrary or biased decisions.

 

Mr Creser says he will this week file a judicial misconduct complaint with the Judicial Conduct Commissioner.  His complaint is he only asked that the judges comply with existing law they maintain an accurate record and that their attempts in response to conceal the true grounds of his appeal and secretly dismiss his application are personal abuses of office.

Supreme Court Determined to Keep Court Applications Sequestered

The Supreme Court of New Zealand issued a 18 December 2015 edict in Greer v Smith ([2015] NZSC 196) after all five judge quietly convened to consider their own motion to change law on public access to its court records.

 

The edict “proposes” that New Zealand’s highest court will address public requests for court records according to “pre-1973” law.  This new process means any administrative request to access the Supreme Court public record must be determined by a single Supreme Court judge, off-the-record, privately in chambers, with no right of appeal or review.

 

The Supremes’ nostalgic hark back 43 years is not insignificant.  Forty-three is the years needed to evade the public access-enabling legislation passed by Parliament in 1973 & 1974, the right to impart public information guaranteed by the New Zealand Bill of Rights Act 1990, the section 28(3) Supreme Court Act 2003 right of review and Section 3 of the Public Records Act 2005.  These relevant laws – all of which conflict with the full Court’s negation of jurisdiction to review their privately-made orders – were not applied by the bench.

 

New Zealand’s unwritten Constitution prohibits Supreme Court judges from convening private court on their own motion to pass new law.  This violates the separation of power doctrine which vests law-making powers only with the legislature and limits legal determinations by judges to matters placed before them by a legislative application process.  Doing so without giving public notice or without allowing legal submissions raises further constitutional issues.

 

One upshot is Attorney-General Chris Finlayson has been formally notified of the Constitutional breaches and asked to support a recall application.  The Cabinet Manual places a remedial obligation on New Zealand’s highest law-enforcement officer; “The Attorney-General has particular responsibility for maintaining the rule of law.  The Attorney-General has a responsibility to notify Cabinet of any proposals or government actions that do not comply with existing law and to propose action to remedy such matters.”

 

The cover story provided in the judgment indicates the five Supreme Court judges were mindful they were breaching the law.  The judges recorded in their judgment that “Mr Siemer in person” appeared as counsel in the matter.   In response Mr Siemer has provided an affidavit confirming the Court provided no notice of its actions and allowed no submissions.  The judges then proclaimed their action did nothing more than bring the process to access Supreme Court records in line with the legislatively established process at the High Court.   Exactly equal – except for High Court decisions on access begin with the Registrar, get appealed to a judge, then appealed to the Court of Appeal and then appealed to the Supreme Court if a law has been violated.   In contrast, the first stop chambers decision of a Supreme Court judge is the first, last and final word.

 

additionally reported on www.kiwisfirst.co.nz

New Zealand Supreme Court on Lockdown

Links to documents in this article available on www.kiwisfirst.com.


Two years ago, the permanent judges of the Supreme Court of New Zealand took away the power of their Registrar to allow public access to our highest Court’s files and rulings other than what they choose to publish on the courts website.  
Not surprisingly, this judicial direction was not published. 


Last month, Supreme Court Justice Mark O’Regan ruled by private Minute that formal Applications for Leave to the New Zealand Supreme Court are not part of the public court record.


O’Regan’s Minute has been appealed on four legal grounds, including the unlawfulness of private, unrecorded Minutes to dismiss interlocutory applications to the Supreme Court.  The Supreme Court judges have yet to issue any decision.


In another private Minute on 30 October, fellow Justice William Young loosely relied upon O’Regan’s Minute as authority to deny access in another file, before admitting some Supreme Court decisions are unrecorded.  Young claimed three such decisions tucked away in the subject file added nothing to the decisions which had been published.  The judge still placed them off limits to the public.


Adding to these obvious alarm bells, petitioners for Supreme Court case information are routinely stiff-armed with the response they refer to the Supreme Court website.


Requests for Supreme Court record access must now be determined by Judges of the Supreme Court as interlocutory applications, immediately raising questions of standing, as well as putting applicants at risk of thousands of dollars in costs orders if they are unsuccessful.


Hardly surprising, applications for access to New Zealand’s highest court are rarely made.  It is believed no request to date has been successful.  Certainly no ruling has been publicly released.


This practice and result not only conflict with common law doctrines in democracies, it is in contrast to every other New Zealand Court – all legislatively bound by a public access prerogative.


Supreme Court Justice William Young’s Minute ordered SC46/2015 Creser v Creser off limits.  His unpublished reason was the Applicant “has been categorised as being in abuse of process and I am reluctant to take any steps which might facilitate the broader dissemination of material which has been so categorised.”  Really?!  This included issuing three decisions off the record in an appeal which is understood to have relied upon evidence of a judicial conflict of interest by Justice Mark O’Regan which O’Regan had personally ordered could not be accepted for filing!


There is zero chance any of this will be reported by New Zealand mainstream media which, indicative of their actual focus, have yet to find a celebrity rumour not worthy of breaking headlines.  As this story of secrecy at New Zealand’s highest court is posted, the New Zealand Herald is breaking the story of a “Hollywood superstar and womaniser reported to have HIV”.  The Herald story offers no clue as to who this person may be other than “he’s a straight man”.  This is sadly what passes for mainstream news in New Zealand.


The secrecy is bad enough but not the whole story.   A blatant hypocrisy exists where New Zealand’s Supreme Court judges repeatedly make submissions to Parliament which claim it is not only the public nature of their jobs but the “high visibility” of “the judicial process” which “impose an important discipline on judges and provide an effective protection against arbitrary or biased decisions.”  This claim was in the Judges joint submissions dated 30 August 2012 in opposition to a proposed bill requiring them to register their pecuniary interests.


In respect to similar 2003 proposed legislation, every judge currently on the Supreme Court lodged opposition wherein they declared themselves already sufficiently accountable, audaciously declaring in light of their more recent actions, “The openness of the judicial process reduces the prospect of misconduct and of it going unremarked and unchecked. “Sunshine is the best disinfectant.”


New Zealand could sure use a ray of that sunshine now.  These perverse practices driving the highest level of government are matched only by the unnerving hypocrisy of the judges integrally involved.

 

High Court Ruling a Setback to Public Access of Records

Wellington Justice David Collins ruled on 15 April 2015 that administrative decisions of Court of Appeal and Supreme Court Registrars are not judicially reviewable.  The summary strike out prevents challenge to the Supreme Court Registrar’s directive of October 2013 prohibiting public access to Supreme Court filings, as well as this website’s attempt to publish filings on-line.  The Judgment’s reasoning: Registrars act “under the supervision of the Judges who comprise the Court”.

 

 

The ruling, Rabson v Registrar of the Supreme Court, turned New Zealand’s jurisprudence on its ear.  Parliament had ‘guaranteed’ judicial review against Crown decisions in passage of the New Zealand Bill of Rights Act 1990, some 25 years ago.  However, Collins J did not address the Bill of Rights Act 1990 in his judgment analysis while accepting no alternative remedy to judicial review may be available in law.

 

The ruling now places New Zealand’s Supreme Court registrars, and likely Court of Appeal registrars, above the law.   In an answer to an Official Information Act request last year, the Ministry of Justice responded the number of NZ Court of Appeal registrars fluctuates depending upon the needs of the Court.   New Zealand has a history of Registrars engaging in rule of law breaches.

 

In R v Taito [2002] 3 NZLR 577, the Privy Council found rule of law breaches were systemic at the New Zealand Court of Appeal.   In 2004, the New Zealand Supreme Court replaced the Privy Council as the final court arbiter in New Zealand.

 

Rabson is appealing the ruling.

 

Prior to Collins’ ruling, a remedy in law was crucial to maintaining a lawful right.  In paragraph [17] of the judgment, Collins accepted this rudimentary legal principle – before ignoring it altogether.

 

In February, in Siemer v Registrar of the Supreme Court [2015] NZSC 21, the Supreme Court declared its own jurisdiction to review decisions by its Registrar was “doubtful” unless the decision concerned a substantive matter currently before the Court.   In 2011, the Supreme Court ruled in Attorney-General v Chapman [2011] NZSC 110 that the New Zealand Bill of Rights Act was not enforceable against judges despite the plain wording of section 3 which declared it was.

 

At least on paper, judges are still accountable under the Act to each other.  Collins’ judgment leapfrogged the Supreme Court Registrars a step further, exempting them from judicial review under the Act and conceding their actions may not be accountable to anyone.

 

Mr Rabson has also appealed directly to the Supreme Court on the ground the Court relies ad nauseam on Parliament’s supremacy when it suits their strict interpretation of limits to court access and on rights generally, while Collins’ judgment ignored a legislated right and remedy in a piece of dominant legislation.

 

 

 

Supreme Court Registrar Reviewed for Failure to Record Judgments

A Wellington man has filed a Judicial Review against the New Zealand Supreme Court Registrar for alleged rule of law breaches in failing to publicly record rulings of New Zealand’s highest court.

 

Mr Malcolm Rabson claims his application to recall a Supreme Court judgment refusing to grant leave on the ground he should instead seek recall of the subject Court of Appeal judgment was dismissed by email, from a generic email address.  No judge(s) was identified as making the ruling.   No reasons were given.   The Supreme Court Registrar has refused to publicly record the anonymous and unreasoned judgment.

 

Mr Rabson’s judicial review pleads the Registrar had similarly failed to record dismissals of formal applications to New Zealand’s highest court by at least four other appellants in the last 18 months.

 

The recall application which was anonymously and secretly dismissed had pleaded it was an abuse of the Supreme Court’s function to refuse to allow appeal against a ruling by the full bench of the Court of Appeal after the Supreme Court expressly recognised that ruling was unlawful.  The Court of Appeal had ordered costs against Mr Rabson in respect to a hearing after the bench conceded Mr Rabson had no standing to attend that hearing.  The Supreme Court nonetheless dismissed appeal against that judgment, reasoning,  “This is not a matter of general or public importance as it arises out of the particular facts of Mr Rabson’s case. Further, there is no risk of a miscarriage of justice as Mr Rabson has the ability to apply for a recall of the Court of Appeal’s decision.”

 

Recall is an extraordinary remedy with a higher legal threshold.  Mr Rabson alleged the Surpeme Court actions breached his right to the statutory remedy provided by the Supreme Court Act 2003 and were made to keep secret the fact three senior judges of the Court of Appeal, including new Supreme Court Justice Mark O’Regan, breached elementary law so as to avoid public embarrassment.  He says the public importance lies in the precedent of a full bench Court of Appeal judgment declaring parties recognised to have no standing and unable to be heard can still be subject to judges’ orders of costs in New Zealand.

SEQUESTRATION OF SUPREME COURT RECORDS CHALLENGED ON APPEAL

Supreme-Ct-buildingThe Supreme Court Registrar has effected a prohibition against lawyers and public accessing Supreme Court filings. This prohibition was judicially reviewed in the High Court, where, on 29 May 2014, Clifford J summarily struck out the judicial review claiming no jurisdiction to judicially review the Registrar. An appeal for leave directly to the Supreme Court (bypassing the Court of Appeal) has been lodged. The submissions in support of this application were filed on 23 June 2014. No opposition or submissions have been filed by counsel for the Registrar and Ministry of Justice.

 

High Court Strikes Out Judicial Review for want of Jurisdiction

Today, Judge Clifford of the Wellington High Court summarily struck out judicial review of the Supreme Court’s refusal to allow public access.  The JUDGMENT Siemer v Registrar Supreme Court 4750 29.5.14 stated the High Court had no jurisdiction to judicially review administrative decisions of the higher court registrars; that it was solely within the inherent power of the judges of those courts to provide supervision over such processes and decisions.

Supreme Court Registrar Refuses General Access

In response to a request by the administrator of this website to access publicly filed documents at New Zealand’s highest court, the Supreme Court Registrar today issued a general prohibition against record access on the basis New Zealand has no enabling legislation which would permit public access. The decision came exactly 4 weeks after the Registrar deferred reply to the request on the ground he needed to seek legal advice first.

Why This Site is Necessary

The New Zealand Supreme Court was established by statute only in 2003. It replaced the Privy Council in England as New Zealand's highest court.
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Two years before its establishment, the New Zealand Court of Appeal was found by the Privy Council in Taito v Q [2002] UKPC 15 to have engaged in systemic abuses of due process by dismissing as many as 1,500 appeals on an ex-parte basis over the previous 10 years, sometimes on the signature of a court registrar - dismissals often given only in handwritten notations on the court file.
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The public have been told these abuses have ceased despite the Court of Appeal judges found culpable for these due process breaches being the first appointees to the new Supreme Court. Only by seeing the public court records which these judges have been hiding will we truly know.