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The Supreme Court of New Zealand will not allow public access to applications and submissions to this, our highest court.  But why?supreme court of new zealand judges 2017

Consider the recent disguised appeal of Rabson v Judicial Conduct Commissioner & Others SC21/2017 and the most fundamental tenet of law – that no one should be a judge in his own cause.  Underlying this appeal, Sian Elias CJ and William Young J sought and obtained an order of costs in their personal favour in the High Court as Second Respondents, then instructed counsel to oppose appeal of this costs order at the Supreme Court.  As presiding judges they then agreed with their counsel, ruling the appeal be dismissed.  In their Judgment Justices Elias and Young incorrectly stated the appeal was against a strike out order (an accompanying order which was never opposed).  They made no mention of the unreasoned and alleged unlawful Court of Appeal costs ruling in their favour, which was the sole issue appealed.

Subsequent Supreme Court recall rulings in Rabson turned from misleading to odd after the appellant sought recall on two grounds:

1) Justices Elias and Young were guilty of actual bias, having ruled in their own cause in favour of counsel they instructed to oppose the appeal (the first respondent was unaffected by the costs order).   They were active parties ruling in favour of their own submissions.  Moreover, the judges fatally failed to address their actual bias in circumstances where perceived bias is the threshold for judge disqualification, and

2) These Judges had misstated the ground of appeal as being against their being struck out as respondents, obscuring the financial award in their personal favour which was the only order appealed against.

Their odd reaction to this recall application in a moment.

As backdrop, it was late December 2015 the full Supreme Court met in private, off the record, without application, notice or hearing from any party in Greer v Smith [2015] NZSC 196 to declare any judge of their court can prevent public access to the Court record – and such chamber’s rulings are unappealable.  Both rulings conflicted with existing NZ and English law.

The original Supreme Court ruling Greer v Smith [2015] NZSC 136 concerned an appeal relating to then-High Court Justice Lowell Goddard‘s dismissal of a Habeas Corpus application by chambers ‘minute’ and off the record.[1]  That Justice Goddard dismissed a Habeas Corpus application privately from her chambers was particularly touchy for NZ jurisprudence at the time because the Honourable Dame Justice Lowell Goddard had just been appointed head of the U.K. Inquiry into Child Sexual Abuse and was advocated by Atty-General Finlayson as the foremost human rights judge in New Zealand.  This was before Goddard self-destructed in a very public display of incompetence and multiple allegations of racism.[2]

The upshot is the unanimous Supreme Court of NZ in Greer declared ex parte it was within their “inherent judicial control” [3] to prevent public access to court records on the ground their court was created[4] after Parliament passed legislation in 1973 and 1974 which required public access to civil and criminal court records respectively.

While no party was heard from, no record was kept and no notice or hearing occurred, the Greer Judgment claimed the Court did hear from a non-party and prior-declared vexatious litigant, Vince Siemer.  Mr Siemer disputed this and swore an affidavit stating he only made a request to access this public court file and was not given any notice the court had convened off the record and in no way participated in the prelude of the judicial fiat which followed.

Mr Rabson filed a misconduct complaint to the Judicial Conduct Commissioner against the Supreme Court judges for engaging in activities off the record AND on an issue not before any Court (the judges subsequently admitted no record was kept, no notice given and none of the parties were heard from).[5]

The Judicial Conduct Commissioner claimed a lack of jurisdiction to consider the complaint on his interpretation it was a judicial decision to operate outside the law.  Under s8(2) of the Judicial Conduct Commissioner and Judicial Panel Act 2004 judicial misconduct relating to a judicial decision cannot be questioned.

Mr Rabson judicial review the JCC on the ground the Commissioner’s interpretation of the limits of his authority under the Act was wrong.

The Supreme Court judges who convened privately and off the record to issue the edict in Greer were thus named as interested parties, an action which section 9 of the Judicature Amendment Act 1972 requires.

The Supreme Court judges instructed counsel to apply to have their names removed.  Their application was unopposed, but they still sought court costs and Williams J issued an unreasoned private court order[6] granting their request.

The matter was appealed to the Court of Appeal where Brown J issued the summary costs ruling,[7] “In my view, the appeal brought by the appellant is not reasonably arguable. The justices of the Supreme Court should not have been cited as second respondents in the High Court proceeding.”

This decision was in conflict with section 9 of the Judicature Amendment Act 1972 which requires all parties to any decision being reviewed to be named as second respondents in any judicial review. As in the High Court, the Court of Appeal judge gave no reasons for his “view” other than to say judges had been removed from previous judicial reviews.  Nor did he address the statutory requirement of section 9 which mandated they be named respondents.

Another curiosity was Elias and Young JJ took an active role in the proceedings and did not utilise the informal mechanism provided by section 10 of the Judicature Amendment Act 1972 to be removed as parties (i.e. they did not need to seek a hearing).  Neither did they abide in the proceeding, which is customary in judicial reviews.  Rather, they sought through counsel to financially attack the appellant for following a statutory requirement which binds every applicant to judicial review.  No one has disputed this and no judge in 3 consecutive courts addressed the legal conflict of the unreasoned costs award with section 9 of the Judicature Amendment Act 1972.

If you wonder whether it could possibly get worse, brace yourself.   When Rabson filed a recall application on grounds Elias and Young JJ were actually biased, having ruled in favour of themselves and failing to address their actual bias, Elias and Young JJ ruled[8] the defence of “doctrine of necessity”[9] required them to rule in their own cause.   That is right: They relied upon a law which does not exist to support a judge ruling in favour of their own interests!

Relevantly the Supreme Court ruled in Akulue v R [2013] NZSC 88 the doctrine of necessity could not be relied upon as a criminal defence even when someone threatens to kidnap and kill your family if you refuse to commit the crime.  In short, they adopted a criminal defence for their own actions which they had previously rejected as a defence for criminals!  And they did so without giving any reasons why.

It is dishonourable for Supreme Court of New Zealand judges to dismiss appeals which run contrary to their personal interests.   But it rises to a level of inanity and insult when they misstate the ground of appeal put to them in circumstances where they prevent public access to the court record which underpins the judgment.  The Supreme Court judges have yet to explain in Rabson why they have not come clean to properly record this was an appeal of a costs judgment made in their personal favour they had dismissed.  When the New Zealand public wakes up and demands public access to court records much of this chicanery will evaporate with the cloud of obscurity which currently plagues New Zealand’s highest court because judges will no longer be able to play Humpty Dumpty in secret with the lives of the honest people of New Zealand.

Links to the relevant documents and judgments can also be accessed on www.newzealandsupremecourt.co.nz

[1] Footnote “3” in Greer v Smith [2015] NZSC 136

[2] http://www.newshub.co.nz/home/new-zealand/2016/10/nz-judge-dame-lowell-goddard-asked-to-front-over-racism-allegations.html

[3] At [6] and [7]

[4] The Supreme Court of New Zealand replaced the Privy Council as the court of last resort with passage of the Supreme Court Act 2003

[5] “Minute of O’Regan J (Application for Access to Court Documents)” dated 28 October 2016 (unrecorded), at [3] and Minute of the (full) Court (unreported) dated 25 November 2016, at [1] (e).

[6] Minute of Williams J (unreported), Rabson v JCC and others CIV2016 485 781, dated 1 November 2016

[7] [2017] NZCA 44

[8] SC21/2017 [2017] NZSC 96

[9] Ibid, at [2]