Raise Your Hand To This Judge – With Caution

One of New Zealand’s most respected High Court judges (4th out of 63) has come out accepting New Court of Appeal Justice Stephen KosZealand will likely never reach an inquisitional system of justice focused on “finding the truth”.  He advocates instead “the system” promote a “pleading aid” regime to help the “have-nots” whom he accepts have been increasingly marginalised in the NZ courts.

In a March 2016 speech to the Arbitrator’s & Mediator’s Institute of New Zealand, Justice Stephen Kos noted Legal Aid is going the way of dinosaurs in New Zealand with little objection from the legal community and that pro bono culture here is failing in comparison to other democracies.

To avoid what Kos identifies as consequential public disorder, loss of foreign investment and a “grey economy”, the judge advocates a system of “court appointed” lawyers to advise lay litigants in their pleadings at time of filing – importantly without any fiduciary duty on the part of that lawyer to their ‘client’.

Kos – who admits in his speech that he spent his professional life “specialising in the legal problems of the ‘haves’ – government, state-owned enterprises and large corporations” – claims now to have gained some religious conviction for the have-nots.  To demonstrate his point, Kos ruefully reminisced about the time the trial judge asked very hard questions of his corporate client in a ‘misguided’ attempt to assist the lay litigant – but still ‘rightfully’ granted judgment for his corporate client.

Let us reflect on a ‘court appointed lawyer’ paid by the Crown with no responsibility to their lay client – helping them with their pleadings.  Kos J knows exactly where this goes.

Kos J is that lawyer – 8 years for each year as judge.  Not surprisingly then, in his short time on the bench, Kos J has prevented more judicial reviews than his colleagues.  In 2014 he ordered $20,000 “security” be paid to the Crown before a judicial review of the Judicial Conduct Commissioner would be allowed to be considered.   To make certain his order had the intended effect, Kos provided leave for the Commissioner to apply for more security if $20,000 from the lay litigant was somehow produced.

In another judicial review where the JCC claimed to have no jurisdiction to consider whether a judge discriminately ordered persons barred from the public courtroom, Kos J elevated his game in ruling the JCC could not be judicially reviewed.   In his summary strike out order, Kos concluded merits had no legal place in his courtroom, let alone warrant analysis.  Kos J held the same was true for the JCC where he concluded, “The Commissioner does not make ‘merit determinations on judicial misconduct’, as the plaintiff was wont to suggest. Rather, as (Crown counsel) put it, he operates as a clearing house for complaints.”

As the most honourable Kos again admitted in his speech to the Arbiters he considers are stealing business from the Courts (look at his references to Chief High Court Justice Helen Winkelmann‘s previous speech which waived this flag), our “adversarial system of justice” does not bow to determinations of court claims on merit.

Is it disingenuous for Kos J then to complain the have-nots he alleges account for 40% of the judicial reviews in New Zealand are those he now wishes to assist?   His record does not support his claims and his ‘new ideas’ appear a dubious ploy when you look at this record.

Pertinently, judicial review is a ‘guaranteed’ right under the New Zealand Bill of Rights Act 1990; an Act which states at section 6 is to be preferred in interpretation relative to other legal statutes.  As Judge, Kos seldom refers to this seminal legislation on rights issues and rarely accepts its guarantees.

It is not only the plaintiffs who challenge the status quo who in turn provoke Kos J’s genteel evasion.  The Judge has also ‘assisted’ court-appointed and Crown lawyers to contravene court orders against defendants – as he did in Chapman v Rabson where Kos gave ‘proprietor’ status to the Court-appointed lawyer to sell the family home notwithstanding Court of Appeal orders which directly conflicted.   Proving the ‘advice’ which court-appointed lawyers afford, Kos now claimed the defendant agreed with his premise that the court-appointed lawyer effectively owned the familial home.   Kos J ruled in that case, notably after expressly recognising at [15] the lay defendant was unable to secure legal representation, “I was satisfied that this was not an appropriate case in which to exercise discretion.  The defendant has throughout the process of dealing with the plaintiff this year represented himself.”  

Sounds suspect in these circumstances for Kos to promote the rights of ‘have-nots’ in his speech, then lay down his gospel that “the core objects of civil justice in New Zealand” is “to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.”  The reality is swift justice in New Zealand only goes to those who can best afford it in Kos’ court.

Kos J relied upon this quote from the American statesman Daniel Webster in his speech; “A strong conviction that something must be done is the parent of many bad measures.”   This may have been a Freudian slip by Kos, a hearken back to his youth as a Hungarian refugee and a lifetime away from his drives today through New Zealand in his Bentley where he curses the have-nots whose buses supplant the best parking spots.

We will see if Justice Kos’ measures come to feature in our future.