Court of Appeal sells justice

Wellington man Benjamin Easton spends most of his days helping others to appeal unjust decisions by New Zealand Judges, researching law and observing the workings of Parliament from the gallery.  He calls himself “the Political Busker.”  He lives off an unemployment benefit and support of a few friends as he works tirelessly at exposing, and attempting to correct, the injustices which, in some manner, affect all of our lives.

It is not a welcome life, yet one Mr Easton feels compelled to live.  His first experience with the Courts involved the Family Court and his fight to see his children 9 years ago. He has accumulated a wealth of data suggesting the Court apparatus is inherently unjust and often overtly biased.   His cries of injustice, while a common retort of many who have entered the Family Court’s confines, are lost on the public at large.  The tight secrecy which shrouds all NZ Family Court proceedings makes criminals of those who try to expose court abuses – as Member of Parliament Nick Smith found out four years ago – as it prevents the press from covering it.

Mr Easton has helped many men and women since then through the process.  This includes making sense of the bureaucracy which places court-appointed “lawyers for child” on a higher plane than the parents who unwittingly find themselves drawn into court as a result of divorce, abuse or family trauma.  He was instrumental in organizing peaceful protests outside the homes of select Family Court Judges whose decisions consistently showed they considered a father’s role in raising young children was unimportant when the parents became estranged.  The success of such public demonstrations was revealed when Principal Family Court Judge Peter Boshier lashed out through the media to say these demonstrators would not intimidate the judiciary.

A case which Mr Easton currently has before the Court of Appeal has elements of a Greek tragedy.  At once it exposes a dire resilience of a man whose legal arguments are perpetually knocked back by arcane, and often contrived, legal barriers, including large financial fees imposed by Court Registrars, often at the insistence of Judges who are looking simply to lighten their workloads.  Natural justice is prohibited in the very building emblazoned with slogans advocating justice, lives unfairly suffer.  Still we find contentment with any system which “keeps the trains running on time”.

Easton v NZ On-Air and the Broadcasting Standards Authority is a Judicial Review against the Crown for not acting with responsibility and statutory duty against a broadcast aired by Radio New Zealand, Nine to Noon on February 27 2008.  It concerned an interview of Family Court lawyer Catriona McLennan on a review of the Domestic Violence Act 1995. The lawyer used consistent language suggesting only men commit domestic violence and only women and children are their victims.

Easton filed the suit in the Wellington High Court where he alleged the broadcast was biased and openly discriminatory.  Easton cited the statutory obligation under the Broadcasting Act 1989 requiring “that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest”.  His claim against the BSA alleges breach of its responsibilities under s21 of the Act, which explicitly refers to discriminatory stereotyping in the portrayal of violence and protection of children.

Judge Dobson dismissed the case and Easton appealed to the Court of Appeal.

Mr Easton’s legal challenge now includes the lawyer acting for NZ On Air twice compiling an application on behalf of the Broadcast Standards Authority without disclosing this had occurred.  The BSA is supposed to act as an independent oversight body, minimally suggesting the tail was wagging the dog in this case.  Judge Dobson did not agree.  According to Easton, the Judge dismissively stated at the hearing that lawyers do it all the time.   Certainly this is the case with many co-defendants, but Easton strenuously claims this case is not typical.  NZOA have not produced the required authority to act for the BSA into evidence and representation by common counsel was not evident on the face of the Court filings.  Easton contends that under the Act which NZOA operates, and the BSA is entrusted to regulate, the conflict of one lawyer quietly acting for the other is evident.  He adds that where NZOA is acting for the BSA, the conflict is amplified because the BSA was effectively subrogating its authoritative role under the Act.

Easton faces an uphill battle to have his case heard by the Court of Appeal, but it has little to do with the merits of his appeal or lack thereof.

In appeals, the Court of Appeal Registrar sets the “security for costs”, an amount above the filing fee which is designed to cover the respondent lawyer’s cost if the appeal fails.  It must be paid up front by the appellant.  It is an accepted part of our “loser pays” court system.

The problem is this system favours the wealthy and vastly limits court access to the majority of New Zealanders.  Worse, it prevents bonafide appeals from being heard solely because an appellant cannot afford it.  In Mr Easton’s appeal the Security costs were set at $9,480, a sum he plainly cannot afford.  In theory, an appellant can ask the Registrar to rule on the arguable merits and, unless the Registrar can say the prospects for success are miniscule, an appellant’s impecuniousness (financial inability to pay security) must not be allowed to prevent a bona-fide appeal with apparent merit from being heard.  This theory is quite different from the reality in New Zealand, where security costs are imposed by Judges solely to prevent a case from being heard.  Mr Easton points to the greater implications where Registrars and Judges are able to impose financial bars or ignore law to kill off unpopular cases, saying, “In my appeal particularly, the case is not only that the Crown Entities Act prohibits what was done unless an order delegating responsibilities and duties has been made, both defendants are looking to impose security and collect costs as if each were separately represented.”

Easton’s case exposes a growing problem which is far from new.  The Court of Appeal for years has discriminately culled out cases considered politically toxic, a challenge to the supremacy of the Court or were problematic for a host of reasons.  The infamous Taito case, which came down from the Privy Council in 2002, was scathing in its criticism of judicial conduct in the New Zealand Court of Appeal; conduct ranging from preventing defendants appearances and denial of legal aid applications to reduce appeal numbers, to a judge roping a registrar to join him in signing off an appeal dismissal before the Court opened (to meet the requirement of a judicial quorum).

The harsh reality is, since the abolishment of the Privy Council, New Zealand Courts have shifted markedly toward raising extraordinary financial impediments to valid claims.  The New Zealand Supreme Court – in effect, the same Court of Appeal judges whose discriminate conduct was so soundly rebuked by the Privy Council in 2002 – are now the final authority as to whether discretionary financial bars by the Court itself are acceptable.

In Mr Easton’s appeal, the Registrar has failed to provide an opinion as to the perceived merits.  Mr Easton is still pushing for this.  This week, the Registrar reduced the security for costs from the $9,480 to $4,740 as a result of intervention by the Ombudsman.  It is a figure which is still beyond the appellant’s financial means.