In the truth is stranger than fiction department, the Supreme Court has secretly nullified section 28 (3) of the Supreme Court Act 2003 which provides a right of review against rulings by single Supreme Court judges. Further underscoring the laws NZ judges apply differently to themselves, their secret nullification came on the heels of last month’s ruling Erceg v Erceg where they ruled Supreme Court of New Zealand proceedings (as it affects parties seeking similar secrecy) must follow the principle of open justice which they reasoned provides a discipline upon judges to be transparent, describing open justice as “an almost priceless inheritance” and “a principle of constitutional importance”.
The Supreme Court Act 2003 is the defining piece of legislation which binds the actions of our highest court judges. As previously interpreted by the SC judges, sections 28(1) and 28(2) allow any one of them to make rulings off the record so long as their ruling does not dispose of the appeal. The assumption is such rulings only affect procedural issues related to the parties in appeals before the Court and therefore do not warrant public scrutiny.
Section 28(3) of the Act heretofore provided a right of review against such off record and often unreasoned court orders. In December 2015 that right was negated by an Ex parte ruling of the full Supreme Court bench on the public’s right to access the public court record – a matter where Justice Mark O’Regan has now admitted no court record exists in his Minute issued 28 October.
The matter O’Regan J claims no record exists is Greer v Smith, which made a number of rulings exempting our highest court judges from the law which previously bound them. Their legal rulings include usurping the power of their Registrar to grant public access to Supreme Court records, declaring only a single judge can make such a determination, and adding such secret denials by any one of their members are unappealable. This last ruling not only subverts an Act of Parliament, it violates the fundamental common law principle of a first right of appeal against originating court orders.
It gets worse. Greer v Smith was a ruling made after that appeal was conclusively decided and where no party was heard. In any other law-respecting court system this is forbidden. It is called functus officio, meaning judges can no longer use a determined appeal as a vehicle to subsequently advance other agendas. Our Supreme Court judges were apparently aware of this lawful requirement because their ruling claimed on its cover page that kiwisfirst’s editor Vince Siemer was heard “in person”, with O’Regan J last month adding Mr Siemer made “an application”. This has left a number of lawyers joking how Mr Siemer could gain standing to make applications in other parties’ appeals at our highest court when he has active United Nations complaints against New Zealand for being prevented from being heard in his own cases.
The fact is Mr Siemer was not heard and had not applied to the Supreme Court judges to consider whether New Zealand laws applied to them. The hearing and application these judges dubiously rely upon was a simple request to “access the completed case file”.
Prior to this ex parte declaration, the regime called for the Supreme Court Registrar to allow court record access, with any refusal in the civil jurisdiction appealable under section 28(2) of the SCA and record access generally guided by access-enabling legislation dating back to 1973. However, without any analysis of the governing statutes and no public record the Court even convened, all 5 Supreme Court judges declared under cover of Greer, “The current position in the Supreme Court in relation to access to court records corresponds to that which obtained in the High Court before search rules were adopted in 1973 and 1974. Consistently with this, it would be open to the Court to delegate to the Registrar the power to determine applications for access to Court records and for the Court, or Judges of the Court, to review such decisions. Alternatively, it is open to the Court to decide that such decisions should be made in the first instance by a Judge. Recently the Court has adopted the latter option.” before closing the door any ‘first instance’ denial with “we conclude that there is no statutory right to seek a review of a decision by a Judge directly determining an application for access to court records”.
The upshot is the Supreme Court is now the only Court in New Zealand where the Registrar does not control the record and where no right of review against refusal of access exists. And all of this was done off the record if O’Regan J is to be believed.
Supreme Court Registrar Kieron McCarron said late yesterday that a further explanation will be provided by email for O’Regan’s unreasoned order but he would not commit as to whether this will include whether the other justices were made aware of the s28(3) application or had agreed to let O’Regan act in his own cause. It often takes time in the New Zealand Courts to get elementary facts straight. We’ll see.