New Zealand Supreme Court on Lockdown

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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  His unpublished reason was the Applicant “has been categorised as being in abuse of process and I am reluctant to take any steps which might facilitate the broader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.


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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.

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.

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.