Damn The Truth

Damn The Truth

If there was a right-thinking person left who believed Queen’s Counsels were expected to be other than political shills in New Zealand who cover up judicial misconduct, last week provided the awakening.

The Attorney General’s visceral public position on the proliferation of poor judicial decisions in NZ was equally enlightening.

After Tony Molloy QC came out to the National Business Review criticising the poor quality of judicial decisions in New Zealand, Attorney General Chris Finlayson (pictured) publicly went on a personal attack of Dr Molloy, calling his criticisms “rubbish” and “deplorable”, while demanding Molloy “consider surrendering his warrant as a Queen’s Counsel” as a result and absurdly comparing New Zealand’s most senior Queen’s Counsel to a “vexatious lay litigant”.

The attacks come notwithstanding the Attorney General’s recognition in 2009 that New Zealand has a serious problem with substandard court rulings and that court specialisation – what Molloy was advocating – would help toward correcting it.

Dr Molloy specialises in trust and equity law and has said he is routinely embarrassed when he meets colleagues at international law conferences who ask him what the &%$# is going on in the New Zealand courts. He has written several articles critical of our judges fighting above their legal weight.

One such article was the November 2009 Offshore Investment publication “Cuckoos in the Nest”, an article which ironically prompted AG Finlayson to phone Molloy to express his agreement with the criticisms and to further advise court specialisation was on his agenda.

However, Finlayson’s principles fell away after Chief Justice Sian Elias objected to the sensible approach. The Chief staunchly advocates the “jacks-of-all-trades make better builders” approach to judicial duties.

None of this begins to explain the AG’s vicious attack on an informed court critic who he knows has spoken the truth and whose criticisms he has long privately agreed with. The simple explanation has been put down to “old-boy cronyism”, which puts perpetrating a myth above the inconvenient truth

Shortly after the Offshore Investment publication, New Zealand Law Society President Jonathan Temm sent a letter to QC’s asking them to do their duty by turning on colleagues who express criticism of the judiciary. Paradoxically, the NZLS expressed open support for Fijian lawyers critical of judicial failures in Fiji.

It is indeed perverse that a country which prides itself on sport excellence is so committed to judicial ineptitude that the highest law officer in the land and the Law Society ferociously safeguard it.

Askewed national priorities aside, it is unmistakable that the targeting of one of New Zealand’s preeminent legal scholars by the State for justly raising the alarm will have a disquieting effect on similar expressions. Although the depth of the problem has been an open secret in the legal community for years, Molloy’s candour is unlikely to stimulate the needed change but, instead, create greater fear among lawyers in a country known to come down even harder on press exposés of judicial impropriety.

Until last week’s outburst, relatively few lawyers in New Zealand were aware that the Attorney General was active in covering up judicial inadequacies in New Zealand and that the rule of law was under threat.

Meanwhile, Mr Finlayson has already appointed four NZ Supreme Court judges (NZ’s highest court comprises five judges), including his former law firm associate Bill Wilson who was forced to resign months after the appointment for misconduct on the bench. Kiwisfirst was the first to break the story of the scandal.