Judge Discretion in NZ Mocks Procedural Rules

A judicial review of the Judicial Conduct Commissioner’s refusal to consider the merits of a complaint against five Supreme Court judges subverting due process and keeping their actions off the record was summarily struck out on 20 aristotle-quote-on-judge-discretionDecember in the Wellington High Court.

The complaint alleged five Supreme Court judges committed misconduct by meeting secretly on their own initiative to change court record access law on issues not before any court, without notice to or hearing from anyone, in a functus officio capacity (i.e. after the appeal had been conclusively decided).   These facts are not disputed.

In September Commissioner Alan Ritchie held he lacked jurisdiction to consider the complaint because s8(2) of the Judicial Conduct Commissioner and Judicial Panel Act 2004 prevents him from calling into question any decision given by a judge in relation to any legal proceedings.

Though no statement of defence was filed in the judicial review, Robert Dobson J granted the Judicial Conduct Commissioner’s strike out application in a six page judgment, finding no reasonable cause of action was possible.  The eye-opener was when Dobson J reasoned in defence of the misconduct the Commissioner had refused to consider “Such matters of procedure are entirely within the Judges’ discretion and could not be separated from the lawfulness or correctness of the outcome that was produced by the process they elected to adopt.”

Few denizens of law would agree judges are not constrained by lawful procedure but the conduct in this case attacked at the heart of constitutional law in countries where judges are not supreme sovereigns or despots.  That adopted procedure was the five highest ranking NZ judges deciding secretly and on their own initiative without notice to or hearing from anyone that limits needed to be imposed on public access to Supreme Court records – limits which they admitted in their subsequent orders were at odds with record access legislation binding the other New Zealand courts. As the issue was not before any court, they used a conclusively determined appeal as cover and claimed in their subsequent ex-parte ruling to have “heard in person” from kiwisfirst editor Vince Siemer, a non-party they had earlier barred as a vexatious litigant from making court applications as a party.

No record was kept of the secret court session.  The full bench then held unanimously that existing court access legislation passed in 1973 and 1974 does not constrain the nascent NZ Supreme Court and its judges (on the basis these laws were passed before the SC was created in 2003), that their Registrar is no longer allowed to grant access to the court record (on grounds it was within their ‘discretion’ to do so), that any judge of their court can now prevent public access to records (again, discretionary power) and, to top it off, that all denials to public record access can be done by private minute and are unappealable.

The subterfuge of a full bench of a nation’s highest court holding a secret session for a non-party who was subject of 100 previous adverse NZ court judgments was revealed in the first paragraphs of the judgment where the judges admitted the legal news editor sought only access to the Supreme Court application filed in Greer and that this administrative request “provides an opportunity for us to reconsider the way we deal with such issues.”  How convenient.

By constitutional law New Zealand judges are not permitted to create law secretly, on their own motion and without hearing from anyone other than themselves.  Moreover, issues decided by a court must first be validly placed before the courts by a litigant.  The rule of law requires the party bringing it be allowed to be heard and for the process to be in open court unless direction or agreement is reached for a determination “on the papers”.  There is no allowance under the Supreme Court Act 2003 or Supreme Court Rules 2004 for the entire bench to meet secretly and rule on new procedural limits to court access simply because a citizen made the reasonable request to view one concluded court file.

This being New Zealand, Attorney General Chris Finlayson sees nothing wrong with this impingement on constitutional limits on power.  But he appoints all the judges in New Zealand – without any vetting process.  Both are rarities in any egalitarian democracy founded upon the rule of law.

A month ago the Attorney-General was successful in getting a High Court judge he appointed strike out a judicial review of his refusal to report the rule of law breach by the judiciary to Cabinet as required by 4.3 of the Cabinet Manual 2008 which directs “The Attorney-General has a responsibility to notify Cabinet of any proposals or government actions that do not comply with existing law.”  The Judge ruled the independence of the judiciary exempted judges from government and that the word ‘government’ in the directive meant ‘explicitly executive (branch)”