Story Book Justice at Supreme Court

When the average leave dismissal judgment of the Supreme Court of New Zealand is less than 4 pages long, something smells funny when a Supreme Court judge issues a 6 page judgment to dismiss an Justice Court of Appeal President Ellen Franceapplication for waiver of the filing fee.

This week Justice Ellen France wove a six page story to dismiss an application for waiver of the filing fee made on public importance grounds.  Not that readers could pick out the matter of public importance from France’s judgment.  This gem was well hidden at paragraph [20] before the Judge did a side step which crossed the line from disingenuousness to dishonour at [21].  In short, the Court of Appeal had terminated an appeal when legal aid was still live.  France J declared this to be a “factual” dispute, concluding on this basis “it is hard to see that there is a genuine public interest.”

The Judgment began with ‘Reasons’ and France J announcing her ‘rehearing’ approach to the question of fee waiver.   The judge then appeared to thoroughly traverse the issues, embarking on a tale of bankruptcy, lotto prize win and High Court facts and quotes.   The problem was the issues the Judge addressed had nothing to do with the question of law before her.

The application dismissed by the lengthy judgment was one page long.  It accurately pointed out that the Court of Appeal made no factual assumptions let alone conclusions.  The appellate court merely terminated the appeal because legal aid had not been approved “in the first instance” and after acknowledging legal aid was an unresolved and live issue.

But no one would know this except Supreme Court staff because the public are not allowed access to the Court’s record without approval of a judge.  Any judge can prevent access and, according to Greer v Smith, such refusals are unappealable.

This is the problem with Supreme Court of New Zealand judgments.  Its Judges are creating fictional legal works simply because there is no ability amongst the public and legal community to fact check them or, more basically, provide the necessary reality check.

In this case Justice France spent six pages obscuring a single issue of public importance put to the Court in a one page application.  Her judgment was not honest in identifying the issue which in turn allowed her to be dishonest in addressing her fictional premise.  She gets by with this dishonesty because the application which would divulge her dishonesty is kept under secret lock and key.    Lawyers who experience this privately call it ‘intellectual dishonesty’ but it is dishonesty plain and simple.

France J’s dishonesty did not begin and end with the issue before her.  The Judge stated at [21] “On the material before me, the proposed application for leave appears to focus on factual matters particular to the situation facing the Trustees.”  This explanation sounds plausible until you read the application for leave, which confirms facts are not a factor.  The true issue is entirely one of law – in an area where there is no dispute New Zealand courts have a long history of acting unlawfully.  The application for leave makes this crystal clear, cites public protestations from Supreme Court judges that they would ensure this does not happen again and leaves no room for doubt the systemic judicial abuses the Privy Council found to be occurring in New Zealand up to 2002 are now occurring again, this time in the civil jurisdiction.

When you put this easy puzzle together it becomes evident that France J could not have been mistaken about the legal issue and the public importance of it.  She barely gave it passing reference in her discursive judgment and did not confront it – inaccurately calling it a “focus on factual matters particular to the situation” and adding “the underlying issues have been the subject of earlier litigation”.

What makes France’s conduct criminal is it covers up unlawful conduct by Court of Appeal judges, the court which she was President of until a few months ago.

In Attorney General v Chapman, the Supreme Court ruled it now provides a level of protection against judicial abuses which was not available when the Privy Council in Taito v R [2002] 3 NZLR 577 determined New Zealand Court of Appeal judges abused their position over decades to deny criminal appellants their rights of appeal.   Chapman, one of perhaps 1,000 unlawfully affected, had sued the Crown for damages caused by these unlawful acts of judges.  But public law damages were deemed unavailable in part because such judicial offending has been remedied and is unlikely to reoccur.  In truth, the difference is the offenders have been promoted from the Court of Appeal to the newly formed Supreme Court and they are not prepared to call out the new crop of crooked lawyers at the Court of Appeal despite the evidence being incontrovertible.