Supreme Court Chief Justice Sian Elias

Chief Justice ELIAS, Sian Seerpoohi  

Professional Data:

2014 Judge Survey Score (1-10): 8.4  Ranking (out of 62): 1st

Supreme Court Chief Justice Sian Elias

Postion & Titles: Chief Justice, former Law Commissioner, GNZM, QC
Judge of: Supreme Court, since 2004 Formerly High Court, 1995, Chief High Court Justice 1999
Specializations and Professional Interests: Politics and the Law
Professional Comments: Chief Justice Sian Seerpoohi Elias is a moderate leaning judge.  Along with Susan Glazebrook, the two make up the ‘moderate wing’ of the current conservative court.

Sian Elias is a very astute political operator, which makes up for her lack of leadership skills.  Her strength as Chief Justice on the Court is that of an ‘enabler’, a personal tendency to look the other way when it comes to misconduct by her fellow judges.  This tendency fosters allegiance but not much professional respect from her colleagues.  It also conflicts with what the public expect in the way of integrity from their judges.

Considered to be a judicial activist, not averse to challenging conventional norms about parliamentary supremacy.  In a 2009 Law Society speech, Elias CJ provoked rare angst from Justice Minister Simon Power when suggesting the government should change “punitive and knee-jerk” policies toward sentencing.

In early 2013, Elias CJ expressed policy views that the sale of State electricity assets would “inevitably” create barriers to Maori claims which raised eyebrows because the issue of asset sales was before the court.

Dame Sian Elias has faced down many personal conflicts of interest in recent years.  In 2012, she tried to quash the New Zealand Herald‘s request for judicial expenses.  It turned out she sucked $74,488 in travel expenses the prior year from the taxpayer, much of it spent travelling with her husband throughout the United States, Turks and Caicos, London and Melbourne. This followed released communications in which disgraced Supreme Court Justice threatened to pen a tell-all book, which many would bring down Sian Elias, if he did not obtain the government pay-out he wanted.  Wilson got the $3.8 million payout.

In 2018, Chief Justice Sian Elias gave a provisional ruling ahead of any evidence in the case Price Waterhouse Coopers v Walker which many viewed as an attempt to enrich insurance company IAG, upon whose board her husband sat. The litigation funder LPF Group took a complaint to the Judicial Conduct Commissioner who dismissed it on the ground he had no jurisdiction.

Also in 2018, Elias CJ was the subject of a judicial review of the Judicial Conduct Commissioner for ruling in favour of counsel appearing on her behalf to oppose a costs order in her favour.  At the time of her retirement 8 March 2019, the Judicial Review awaited timetabling in the High Court at Wellington.

On the Rules Committee – a judicial policy body which is immune from oversight or Parliamentary controls – Dame Elias has been instrumental in leading the shift away from New Zealand statutory governance of court proceedings and outcomes to the more arbitrary implementation of insular rules.  The evolution has been a rapid one since 2005, with judges given far more discretion in limiting evidence, access to the courts generally and relegating trial by jury to a legal footnote, particularly where Crown agents are defendants.

Chief Justice Elias has also been instrumental in resisting the call for specialised courts in New Zealand, arguing that New Zealand’s strength lies in the ability of its judges to effectively deal with legally diverse situations, ranging from criminal (which makes up 65% of the cases) to complex commerical, intellectual property and trust law. Justice Elias made her reputation on Treaty of Waitangi cases when she was a barrister.

In September 2006, Chamberlains v Lai, the Chief Justice, sitting in the Supreme Court, abolished barristerial immunity. In June 2003, Elias CJ controversially sat on the Court of appeal bench in the  Ngati Apa v Attorney General case where the Court held that the High Court’s judgment was in error in assuming that Crown acquired property in land of New Zealand when it acquired sovereignty. That transfer of sovereignty did not affect customary property as they were interests preserved by common law until extinguished by law.  Legislation relied on by the High Court did not extinguish any Maori customary property in seabed or foreshore; Maori Land Court therefore had jurisdiction to determine status of foreshore and seabed. The decision was overturned by parliament with the advent of the Foreshore and Seabed Act 2004. Chief Justice Elias’s sitting on the Ngati Apa case caused controversy as she is known to be a supporter of the Maori claim to the Foreshore and Sea bed and was counsel for Maori Council in several high profile Treaty of Waitangi claims in the late 1980s through mid-1990’s.  It was one of three similar cases Sian Elias would hear without objection by the Executive.

In early-2013, Chief Justice Elias ratcheted up the activism by commenting the government should limit sale of the State electricity assets to 25% prior to her possibly hearing a legal challenge against the National government’s plan to sell off 49%. Chief Justice Elias often takes a conservative stance in criminal cases but has recently called publicly for an amnesty to relieve the New Zealand prisons of overcrowding.  Chief Justice Sian Elias’ Supreme Court denies many leave to appeal decisions of the Court of Appeal unless there are substantial grounds of general/public importance or miscarriage of justice which – more importantly – play loudly in the public arena.

Elias CJ gave judgment in Kurariki Bailey Junior v R, upholding the High Court’s decision to sentence Bailey Junior, who was 12 years of age at the time, to 7 years imprisonment for his part in the killing of pizza delivery man Michael Choy.  Bailey became the Country’s youngest adult convicted killer.

In a May 2007 decision (Brooker v Police [2007] NZSC 30), Chief Justice Elias wrote the opinion for the majority in a narrow 3/2 split fo the Court – in a case that was heard by the Court 18 months earlier – that it was legal to engage in peaceful protests on public streets and walkways.  Dissenters believed rights to privacy should limit free speech rights.  The case involved a Police officer (subject of the original protest) complaining she was woken up by a peaceful protest conducted at 9:30 am in front of her home.

Justice Sian Elias joined Justices Wilson and Blanchard in Gregory v Gollan SC4/2009 [2009] NZSC 29, a ruling which contravened statutory guarantees “requiring” trial by jury as provided by s19 of the Judicature Act 1908 – in favour of ‘judicial discretion’ to override statute.  In a declaration of legal fiction, the Judges declared, “(trial by jury) is now covered by New Zealand legislation which makes it clear that proceedings are to be tried by judge alone unless the Court exercises its discretion to order trial by jury.”  This false legal statement by the three highest Judges in New Zealand went publicly unanswered by the NZ Bar.

In 2009, Chief Justice Sian Elias helped bring the Court into disrepute by refusing to act when fellow Supreme Court Justice Bill Wilson was caught-out reversing a 2007 case on appeal for his mate and business partner Alan Galbraith QC (Saxmere v Wool Board) when Wilson was on the Court of Appeal.  This was hugely embarassing because the drama lasted most of the year, resulted in the Supreme Court flip-flopping before granting a new trial and thoroughly exposed how Judge Wilson gave widely varying accounts on the material nature of his relationship with Mr Galbraith when questioned after the verdict.  Elias CJ’s response was to refuse any questions or inquiry.  Personal emails between NZ Bar President James Farmer and retired Justice Ted Thomas subsequently revealed concerns these men had that the Wilson scandal would likely bring down Chief Justice Elias if probed.  Wilson resigned, saving the Chief Justice’s neck, many believe.  The inequity strained the personal and close relationship that Wilson and Elias once had.

After months of the Judiciary refusing to provide information regarding judicial travel perks under an Official Information Act request by Fairfax Media, it was revealed that Chief Justice Elias was the worst abuser of the entitlement.   Elias CJ claimed $74,488 in taxpayer-funded travel in 2010 alone for her husband and herself, thjs despite her husband being one of the wealthiest men in New Zealand (estimated worth $70 million).  Few people realised before this that the Chief Justice has such a strong sense of personal entitlement.  Further concerns were raised when it was revealed she had personally sat on the request for months before ultimately agreeing to release the information. Chief Justice Elias has actively sought to influence public perception of judges and has directed she must approve any Official Information Act requests made in regard to New Zealand judges or entitlements.  She has refused repeated requests for information on details of judges’ expenditures, as well as how much former Supreme Court Justice Bill Wilson (who was forced to resign in 2010) is being paid out in superannuation by the Ministry of Justice, calling such requests private matters not subject to disclosure under the Act despite relatively clear statutory language which appears to dispute this.

In 2013, the Chief Justice strongly dissented in the Court’s judgment in Siemer v Solicitor General, stating the failure to allow challenge at trial for non-party contempt to a gag order issued against the world was a breach of the rule of law.

Background / Education: Studied law at the University of Auckland, graduating with LLB (Hons), and was admitted to the Bar in 1970. She gained a JSM from Stanford University in the United States, before entering legal practice from 1972 in Auckland. Dame Sian served as a Law Commissioner from 1986 until 1990. She was appointed a Queen’s Counsel in 1988 and a judge of the High Court in 1995. Justice Elias became Chief Justice in 1999, and was awarded the GNZM the same year. Dame Sian became a member of the Supreme Court on its establishment in January 2004. Political
Degrees: LLB (Hons.) Auckland 1969, Juris Masters, Stanford University (U.S.)
Admitted to the Bar: 1970
Company Involvements: Sian Fletcher (Dame Elias’ married name) Current Director: Arrow Wrights Ltd, Fletcher Brothers Ltd, Highpoints Apartments LtdHugh Fletcher is current Director:of the Reserve Bank of NZ, Energy company Vector Limited, 151 Insurance Ltd (HAF joined the board & the name changed to NZI Insurance New Zealand Ltd) now in Rec under John Vague owned by the IAG companies, Arrow Wrights Ltd, Fletcher Brothers Ltd, Fletcher Building Finance Ltd, Fletcher Building Ltd, Freemans Bay Properties Ltd, IAG (NZ) Holdings Ltd, IAG New Zealand Ltd, NZI Staff Superannuation Fund Nominees Ltd, Rubicon Forests Holdings Ltd, Rubicon Forests Investments Ltd, Rubicon Forests Ltd, Rubicon Ltd,Former Director: Ports of Auckland Ltd, Tenon Custodians Ltd, Tenon Holding LtdTenon Holdings Ltd, Tenon Ltd, VCU Technology International Ltd, VCU Technology Ltd,

Son Edwin Thomas Fletcher, Parnell. Current Director: Arrow Wrights Ltd, Fletcher Brothers Ltd, Mokau Investments Son Benjamin Hugh Fletcher Former Director Arrow Wrights Ltd, Fletcher Brothers Ltd Also note a fellow director Margaret Mair Elias Highpoint Apartments Ltd

Personal Data

Born: 13/03/49 London, England Sex: Female
Married: 1970 Hugh Alasdair Fletcher Children: 2 (Edwin Thomas b.1975 Benjamin Hugh b. 1976)
Interesting Relationships and Coincidences: Has extensive business interests through immediate family.  Married to Hugh Fletcher of Fletcher Construction. Connected to fellow Supreme Court Justice Peter Blanchard through past businsess associations and with Justice Bill Wilson in racehorse breeding.
Miscellaneous: Armenian and Welsh Heritage, Breeds and races horses.