Posted On: Friday, 28 October 2011


28 October 2011
It is hard to imagine a judge more asleep at the switch than Helen Winkelmann (pictured). As the Chief High Court Judge who has accurately identified that courtrooms around New Zealand are sporting more cobwebs these days than litigants, one would think she might try to figure out what it is about the courts that seems to have provoked a broad allergic reaction among the public. Instead she is out to attack her 'competition' - as she sees it.

That competition, according to Winkelmann J, is those damn mediators and private arbitrators. They deprive the nation of the body of court precedent which guides commercial and civil law, and - hold your hats - are not as trustworthy as the courts.

In one such recent speech to the Arbitrators' and Mediators' Institute of New Zealand, Winkelmann J tried to warm up the crowd by accepting that mediation "is a good thing", before immediately delving into her "four concerns". More than a few jaws dropped when she claimed that personal interests of the mediators, excessive durations of mediations which impact judgment, cost blow outs and resolutions determined by power imbalances were the bane of this alternative to her pet court option.

Was this not a case of the old girl projecting the ills of the courts upon her competition?

Media responses from the National Business Review to NZLawyer to Her Honour's gypsy tour suggest questionable judgment by the Chief Judge, not without, perhaps, a little pity for the old girl.

One obvious thorn is virtually everyone knows that decisions can take years to come out of the NZ courts. Winkelmann herself often takes six months to issue an interlocutory ruling. Even the World Justice Project survey run by Court of Appeal judge Anthony Randerson's brother could not ignore this reality, giving New Zealand low marks. It must therefore be demeaning for Winklemann J to have to obfuscate these realities in her effort to sell reasons to use the courts. The charade is perhaps reminiscent of President George Bush's sales pitch for going to war against Iraq.

Winkelmann J is also more junior than the five judges, other than Raynor Asher, who sit on commercial cases. She has repeatedly turned a blind eye to judicial indiscretions by senior judges under her authority, including conflicts of interest by Judith Potter and Geoffrey Venning JJ and the obvious inability to add accounts by Rodney Hansen J when ruling in favour of his mates.

There is also the broader question of who really wants to see the Chief High Court Judge busking on the street for business?

Though Her Honour has taken up the avocation of hawking courtroom services on the lecture circuit, her dissing of the competition has provoked unusual criticism of a judge in a country where the gospel states judges have no flaws. Barrister Nigel Dunlop, writing for NZLawyer, too politely responded that, contrary to the hapless Winkelmann's remarks, parties to mediation control both the process and the costs - in contrast to court proceedings.

As to power imbalances, it is absurd to advocate NZ courts as providing a more level playing field when money is such a driver that plaintiffs must put the defendant's projected legal costs into escrow before they can obtain a hearing and judges are so cloaked in immunity and self-importance they have no compunction deciding cases involving family and business partners without mere disclosure.

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