Harrison Appeal Relies on Judge Incapacitation

Lewis Carroll’s menagerie might find validation in a decision earlier this month by Court of Appeal Judge Rhys Harrison, appealed last week to the New Zealand Supreme Court on grounds of judge incapacitation.Rhys Harrison New Zealand Court of Appeal

In a 4 September chambers ruling in Creser v Creser, Rhys Harrison J doubted any judge of the Court of Appeal had jurisdiction to review a decision of its Registrar refusing an application for filing.  The judge then doubted jurisdiction existed to bring the appeal.

Each jurisdiction is provided by single digit rules of the New Zealand Court of Appeal which make up the handbook for judges of our highest appellate court by right.

Harrison J has been a permanent Court of Appeal judge for 5 years.  He sat ad hoc on Court of Appeal cases for at least 5 years before this.

Justice Harrison’s judgment next claimed the Application sought “to amend this Court’s decision delivered on 8 October 2003” despite a highlighted passage in the application which sought remedy against the materially altered ‘Notice of Result’ the Registrar recorded a week later, and only recently identified as materially different from the Judgment.  The upshot is the judgment Harrison declared was subject of amendment challenge was in reality being defended.

Creser v Creser has waffled and waned through the NZ courts for more than a decade, setting many legal precedents along the way.  In 2003, David Gendall AJ departed from settled equity law to grant a bankruptcy petition in favour of a trustee over the trust beneficiary – this according to the Notice of Result recorded by the Court of Appeal Registrar.  Gendall AJ is recorded as agreeing with the trustee’s choice that $3,000 costs awarded him in an unsuccessful bid for disclosure by the beneficiary need not come out of the beneficiary’s unpaid trust entitlement of $56,000.

There were no other creditors.

In 2006, Creser v Official Assignee was the ground-breaking order of security for costs by the Court of Appeal under the current regime.  That precedent recognised judicial “interference” with a Registrar’s order as a legal constraint and ordered “independent” security to a Crown respondent despite that Crown entity holding the applicant’s cash assets as bankruptcy trustee.

Incapacitation is the inability of a judge to carry out their official duties due to the onset of physiological or psychological impairments.  In September 2009, Crown Solicitor Peter Gunn provided then-Judicial Conduct Commissioner Ian Haynes a reasoned legal opinion advising judge incapacitation could justify removal from office.

In 2013, Commissioner David Gascoigne endorsed this position in writing, stating “If it became apparent to me that a Judge’s approach to and conclusion upon the issues was wholly divorced from sense and logic, then that could conceivably give rise to a claim of incompetence, amounting to incapacity. And that maybe (sic) seen as an issue of conduct.”

Creser’s application to appeal Harrison’s judgment to the New Zealand Supreme Court pleads Justice Harrison’s incapacitation was “both elementary and broad” and provided support in the form of quoted passages in the Judge’s four paragraph judgment.