Attack on Parliament’s Plain Statute by NZ Court of Appeal

We take the law for granted in New Zealand.  Such blind trust comes at a cost.

Take for example a 17 September 2015 “Minute” by Court of Appeal President Ellen France (pictured) and two permanent Justice Court of Appeal President Ellen Francemembers of that Court.  This private document includes a judicial fiat on procedural law which asserts section 61A(2) of the Judicature Act 1908 does not provide the due process right it has always provided so plainly on its face.

Section 61A(2) of the Judicature Act reads, “Every order or direction made or given by a Judge of the Court of Appeal under subsection (1) may be discharged or varied by any Judges of that court who together have jurisdiction, in accordance with section 58A or section 58B or section 58D, as the case may be, to hear and determine the proceeding.”

Subsection (1) relevantly provides “any Judge of that court, sitting in chambers, may make such incidental orders and give such incidental directions as he thinks fit, not being an order or a direction that determines the appeal or disposes of any question or issue that is before the court in the appeal or proceeding.”

Without notice, without hearing and by private Minute, Justices Ellen France, Christine French and John Wild have now decreed, “We add a word about s 61A(2) of the Judicature Act 1908.  The purpose of that provision is to make it clear that the Judges who hear and determine the appeal substantively may discharge or vary any order or direction given during the interlocutory stages of the appeal by a single Judge, pursuant to s 61A(1).  It is not a provision entitling a party to seek, in the interlocutory stages of the appeal, a review of an order or direction given by a single Judge pursuant to s 61A(1).  Thus, the subsection applies only to orders or directions that may affect the substantive rights or obligations of the parties. It does not apply to procedural orders or directions.”

Yes, you read this correctly.  A full bench of the Court of Appeal has declared a piece of legislation to not be what it plainly professes to be.  Sadly, propaganda by the Court of Appeal and fear and paralysis in the legal community and media are such that merely reprinting this obvious perversion of law by three permanent members of New Zealand’s highest appellate court by right becomes the responsibility of this website.

But let us make it more obvious.  There are two types of judicial orders – procedural and substantive.  As section 61A of the Act expressly declares any orders and directions which determine substantive rights and questions in the appeal off limits, procedural orders and directions are the only actions unquestionably encompassed by s 61A – notwithstanding the Act’s unequivocal language stating 61A(2) envelopes ‘Every order or direction made or given by a judge’ under subsection (1).  This plain wording did not inhibit three senior judges declaring, extraneous to the issue before them, that s 61A “does not apply to procedural orders or directions.”  A declaration of contrarian law they euphemistically couched as ‘add(ing) a word’.

That word included the notable Humpty Dumptyism, “(S61A(2)) is not a provision entitling a party to seek, in the interlocutory stages of the appeal, a review of an order or direction given by a single Judge pursuant to s 61A(1).”   If true, that leaves the only possible rationale for the legislative provision to be a vehicle for 3 judges acting on their own initiative to interfere with directions already the product of a judicial ruling which none of the parties have a problem with.  Why Parliament would seek to pass such a law unnecessary among the rest of the World’s law-based democracies is now part of the judicial mystique of New Zealand.  The Court of Appeal triumvirate shed no light as to why they thought Parliament would be so aberrantly motivated.

Behind this obvious negation of a plain legislative due process right lies an even more sinister consequence.  Orders of security and even the right to file are among many access-limiting orders commonly made by a single Court of Appeal judge, almost always alone in chambers and often unrecorded.  They are procedural orders which are now, according to this private decree, unassailable.  And they have been declared so in an increasingly-common New Zealand Court of Appeal fashion; in an ‘add a word’ style, off the record, without notice, without hearing and without reasons.