“What sort of madness has infected our legal system when what would be misconduct for a barrister becomes routine – and consequence free – for a judge?” -A. Molloy Q.C.
As civil litigants increasingly avoid the Courts, and embarrassing judicial decisions in criminal cases are more visibly being spun at the appellate level, lawyers are beginning to publicly vocalize dissatisfaction at the poor quality of judicial appointments and the dire consequences of a lack of specialised courts in New Zealand.
What once was a rallying cry that our smallness made the courts more adaptable to necessary changes in the law, has resulted in one-size-fits-all justice from judges ill-equipped in the areas of laws they are ruling. The dog’s breakfast of court precedents which ensue undermine the vary fabric of the rule of law, stymie economic growth and make a mockery of NZ jurisprudence, as evidenced in recent critiques from NZ LAWYER and a trust law analysis paper by senior Queen’s Counsel Anthony Molloy. Both confirm the lack of judicial specialisation is resulting in judicial decisions which do not rise to the minimal expectation of litigants or the prevailing law.
Barrister Anthony Grant, speaking in the 6 May 2011 issue of NZ Lawyer kindly intoned “With four million people, it is very difficult for us to be a cradle of legal excellence in all areas of the law” as he issued a clarion call for what he labelled “the Hong Kong enhancement” – drawing on international jurists to augment skill deficiencies on the NZ appellate bench.
Mr Molloy QC is less guarded, suggesting the Court has adopted the metaphorical view in its own practices that a family doctor can perform neurosurgery because her medical degree qualifies her to do so. In the NZ courts, this has resulted in former-prosecutor judges writing non-sensical, if not dangerous, decisions in the specialist areas of trust and fiduciary law, based upon little more than their gut feelings as lawyers. Conversely, commercial-lawyer judges routinely make a mess of criminal cases, resulting in far more appeals than would be expected, or even tolerable, in a competent court system. The consequence is increasing consternation regarding NZ court rulings among prominent legal scholars around the globe.
Ironically, Attorney General Chris Finlayson agreed when National came into power three years ago, phoning Mr Molloy to praise his prior critique of judicial skills in areas of legal specialisation “Cuckoos in the Nest” and to express his personal commitment to improve judicial competence through specialisation. But since then Prime Minister John Key made it clear to his caucus that he considers identifying weaknesses in the NZ legal system will undermine his attempts to portray New Zealand as a legal bastion for global investors along the lines of Singapore, Delaware in the U.S. and the Netherlands. The problem for the Prime Minister – and the country – is that foreign investors find it hard to miss when a High Court judge, incompetent in the areas of fiduciary or trust law, declares “the appropriate way of looking at the defendants’ financial situation is to do so globally and ignore the fact that the home is settled in a trust. This is a device which has been used for the benefit of the defendants”, as in the recent ruling Matarangi Beach Estates Ltd v Dawson, or, as occurred in Harrison v Harrison, the Judge ruled discretionary beneficiaries have “no rights enforceable in equity”.
Mr Molloy, the preeminent expert on fiduciary and trust law in New Zealand, indicated his increasing embarrassment at international conferences when being confronted by his peers with capricious NZ court judgments which, in the words of distinguished contract law Professor David McLaughlin, fail to “display any feel for the underlying principles and purposes of the relevant law.” He is equally concerned by the Law Commission’s April 2011 reference, without apparent doubt or discussion, to at least one very dubious line of New Zealand cases asserting an alleged “inherent jurisdiction” which appears to flatly contradict leading cases in other jurisdictions.
Molloy’s personal alarm echoes a recent report by the International Funds Services Development Group that “lack of depth and requisite skills in the High Court and Court of Appeal is emphatically an issue of fact and it is not a mere issue of perception.”
Despite the Prime Minister’s attempt to perpetrate the myth abroad and ignore the reality at home, Mr Molloy prudently notes the contrast with the specialised and precedent-distinguished courts of Jersey and queried, “How much of your trust work would you shift from a jurisdiction in which the trust judgments command that level of admiration, to a jurisdiction in which incompetent trust advice, argument, and judgments such as those I have been describing are routine?”