Judge Discretion is the “well-established law” in New Zealand

The New Zealand Supreme Court is falling in step with rulings of the High Court and Court of Appeal determining judicial discretion rather than legal criteria is not only the best approach in deciding many court cases but “well-established” law.

This might be fine if we were in the land of King Solomon, but, let’s be honest.  Judicial appointments in New Zealand focus on a lawyer’s ability to keep Crown secrets and not personal wisdom.  After judicial appointment by the Attorney General supreme court judgesin an obscure and largely secret process, the government and appointee take quick action to remove all references to their legal history from the web.

Rulings coming out of the NZ Courts are roundly criticised by legal doyens around the world.  The new Supreme Court is adding to the laughing stock.  Take the Supreme Court’s recent ruling in Reekie v Attorney General [2014] NZSC 63.  After a two day hearing, the full bench of the Supreme Court promised to create guidelines and predictability to the crippling security for costs regime which requires appellants deposit the cost of the opposing side’s legal costs before any appeal is heard.  The Court admitted the regime which was not supposed to limit court access to the financial elite nor prevent bona fide appeals on financial grounds was not working to the extent “no less than 37 applications for leave to appeal” had been filed with the Supreme Court in six years.  The Supreme Court denied all these applications until granting a lay prisoner with no access to a word processor leave to appeal this vital issue in law.

If the choice of appellant was not telling of the Court’s lack of conviction to hear argument beyond the Attorney General or take a distilling legal approach, the 31 page reserved judgment left little doubt our five highest judges prefer uncertainly in the law.  At Paragraph [41] of Reekie, the knighted bench declared, “As we have made clear, cost and benefit are not to be assessed in purely financial terms. An appeal may raise issues of public interest which are not measurable in economic terms. As well, considerations which are personal to an appellant (for instance, considerations affecting reputation) may legitimately fall to be considered as part of the cost/benefit assessment. Proceedings relating to the vindication of rights under the New Zealand Bill of Rights Act 1990 may have both personal and public non-financial benefits. In the end, what is called for is an exercise of judgment.”

Clear as no law, it is.  “Exercise of judgment” based upon nothing “measurable”, “considerations affecting reputation”, etc.   Lawyers around the country hung their heads in embarrassment.

Professor David McLachlan, a distinguished academic in the field of contract law, stated in “Defying Common Sense in Contract” [2005] NZLJ 300: “I spend a good deal of my working life reading contract cases. Naturally, many of these are New Zealand cases, but in recent times the numbers have diminished. Increasingly I find them not worth the effort. Far too often the judgments from the High Court and Court of Appeal leave me dismayed. There are exceptions of course, but overall the standard of judicial decision-making and reasoning is disappointing. Judgments regularly apply textbook rules without displaying any feel for the underlying principles and purposes of contract law. Decisions are reached that fail to reflect the reasonable expectations of the parties. And sometimes they simply defy common sense.”

In R v Howse [2006] 1 NZLR 433 the Privy Council confirmed the most egregious conduct by a NZ High Court judge in a criminal trial, testing the Law Lords habitual diplomacy to conclude it was “impossible to imagine a clearer example of a trial that has gone off the rails [and become] an unfair trial. We could use more robust language to describe it but, with difficulty, restrain ourselves from doing so.”  The “whoa” moment is exacerbated by the realisation that the appellate process in New Zealand could not sort out this travesty.

Sadly, such necessary and refreshing remedies are no longer available to New Zealanders who had the independent oversight of the Privy Council stolen from them and a hundred million dollar shrine erected to the New Zealand Supreme Court wafflers who took their place.

With launch of the new reporting website www.newzealandsupremecourt.co.nz, Kiwisfirst has vowed to bring you the actual submissions which New Zealand’s Supreme Court judges are making legal hash out of but have been stymied for a year by a general prohibition against public access to court filings by the Supreme Court Registrar.  A judicial review was summarily struck out by the High Court earlier this year on grounds it lacked jurisdiction.  The appeal has been barred by a security for costs order which is currently the subject of leave to appeal to the Supreme Court.  That judgment claims it is “well-established” law in New Zealand that administrative decisions of the Supreme Court are not judicially reviewable despite no law or reasoned authority supporting it.  The judge relied upon unreasoned obiter comment.  In deciding leave on this unsupported discretion, the Supreme Court will no doubt follow its own legal guideline that measures are not needed, rather “In the end, what is called for is an exercise of judgment.”