O’Regan, Mark Andrew
Supreme Court Justice Mark O’REGAN
2014 Judge Survey Score (1-10): 7.3 Ranking (out of 63): 48th
|Postion & Titles:||President of the Court of Appeal since 2010|
|Judge of:||Supreme Court, 2014||Previously Court of Appeal, since 2004. Court of Appeal President in 2013. High Court judge from 2001-2004|
|Specializations and Professional Interests:||As a practitioner, Mark O’Regan specialised in company and securities law, mergers and acquisitions and competition law and was involved in a number of Treaty of Waitangi settlements.|
|Professional Comments:||Nepotism in the parochial New Zealand judicial appointment system took Mark O’Regan J up several rungs of the ladder of success before he was admitted to the bar. His two brothers preceded him into the law and his father (Barry O’Regan) was a judge before Mark was out of law school. Perhaps as a result, Mark O’Regan J has had difficulty relating to the average New Zealander from the Bench, tending to rationalise that some are more deserving of the protections afforded by law than others. The far greater threat is O’Regan J’s numerous rulings – many secret – which prevent court transparency generally (cases below).
O’Regan J is not regarded as particularly bright but his long tenure on the bench and lifelong interest in the law have made him a competent jurist. Once referred to as the “Dick Cheney” of the Appellate Court because of his solemn tendency to approach his judicial duties in relation to what’s best for his own interests and those of his mates. This has led to quiet cries of hypocrite due to his vocal public preachings of the need for the judicial framework to encourage responsible corporate governance while personally disregarding those same ideals.
In 2010, Justice Mark O’Regan was instrumental in formulating a policy shift (along with William Young, Susan Glazebrook JJ and Judge Roderick Joyce of the Rules Committee) which severely limited parties’ access to transcripts in their own proceedings, even for the expressed purpose of supporting an appeal. The Registrar has since been instructed to respond to such requests with the statement “Consideration of appeal options should be by reference to the Court’s judgment, not what was said at the hearing”. The Court of Appeal now routinely refuses to release transcripts to the parties on the ground it costs the court money – even where the parties have offered to pay for the service and the medium is digital.
As President of the Court of Appeal, Justice O’Regan personally selected the panels which hear each appeal. This made him an extremely powerful presence in influencing outcomes. (Such a selection process has been condemned by the United Nations as a system which fosters abuse and corruption)
In Rabson v Gallagher , O’Regan J ruled a marital estate valued at $2.4 million be distributed $1.2 million to the respondent, then to the court-appointed trustee and any remainder to the appellant, after ruling the case fell within an equal distribution under s44c of the Property (Relationships) Act 1976. When appellant’s counsel objected, O’Regan ruled the parties could seek an adjustment if a 50/50 distribution did not result but quickly ruled such an application was premature. After $800,000 had gone missing and Rabson was bankrupted, O’Regan J on his own initiative directed a hearing of an application filed 2 years earlier against the court-appointed trustee. Rabson advised the Court the application had been deemed abandoned a year earlier per Court of Appeal rules and he now had no standing due to bankruptcy. O’Regan J agreed but still awarded the court trustee scale costs for a hearing which did not occur and was not provided for by any law.
Rabson applied to the Supreme Court where Susan Glazebrook J directed him by private minute to seek recall of the O’Regan ruling from the Court of Appeal as the “sensible approach”. When Rabson responded he wanted a public ruling from the Supreme Court, pointing out the Judge had accepted the higher standard for recall had been met, the Supreme Court dismissed his application, finding without hearing or evidence he was at fault for only receiving $129,000. As to the missing $1 Million, the Court-appointed trustee admitted inter alia to selling the family home the Court of Appeal had ordered be transferred to the appellant for $350,000 less than valuation and charging the appellant $31,000 to fulfill a Privacy Act request.
After his appointment to the Supreme Court of New Zealand O’Regan J issued a single judge ex parte and off-record ruling in Greer v Smith  stating Supreme Court judges can refuse access to public court records on the ground the information is sensitive or the request comes from persons not recognised by the judge as press. Before O’Regan’s secret ruling the general public had a right to access court records. But O’Regan J went further, determining at  that “applications for leave to appeal (to the Supreme Court)” are “not within the definition of ‘formal court record'” and are therefore exempt from public access.
Within two weeks, other judges were relying upon O’Regan J’s off-record ruling to issue other off-record rulings denying public access to filings lodged with New Zealand’s highest court.
In reply to an application under s28(3) of the Supreme Court Act 2003 for review of O’Regan J’s ruling as unlawful because the reasons given are unsustainable in law and the ruling itself secret, the full bench of the Supreme Court (including O’Regan) refused submissions and ruled in an unscheduled private, ex parte and off-record quorum that O’Regan’s unpublished view was new law.
O’Regan J later conceded in a private minute that “no record exists” in relation to the full supreme court’s actions in Greer other than the Court’s ruling and the application for access which provoked it, which the judge called ‘submissions’.
In the 2015 appeal Creser v Creser, O’Regan teamed with Justices Arnold and Glazebrook to dismiss an application for leave and two recalls which sought address of the ground “Should O’Regan J have declared his knowledge of his brother’s relationship to the respondent executors and me before making any determination involving said parties?” before finally mentioning this ground in Their Honour’s third judgment, “Mr Creser now says that O’Regan J had a conflict of interest because his brother is a principal of Brandons Lawyers, the last solicitor on the record acting for the first respondent. The first respondent was, however, not represented before Cooper J or before this Court.”
|Background / Education:||Student of St Patrick’s College in Silverstream (Wellington). Graduated from the Victoria University of Wellington in 1977.He was admitted as a barrister and solicitor of the High Court in 1977 and became a partner with the firm Chapman Tripp in 1984. He became a judge of the High Court in 2001 and a judge of the Court of Appeal in January 2004.|
|Degrees:||Victoria University, LLB 1977|
|Admitted to the Bar:||1977|
|Company Involvements:||Former Director Twain Nominees Limited|
|Interesting Relationships and Coincidences:||Youngest of three sons (all lawyers) of the former Justice Barry O’Regan.|
|Miscellaneous:||Not sure what has become of his brother P W O’Regan, but Justice Mark O’Regan’s brother John G O’Regan is principal of Brandons in Wellington.|
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