The Supreme Court created new legal ground last week in ruling judges can act in their own cause to uphold their previous rulings under the judgment review regime provided by section 28(3) of the Supreme Court Act 2003.
The relevant section of the Act states “Judges of the Supreme Court who together have jurisdiction to hear and determine a proceeding may— (b) confirm, modify, or revoke a decision confirmed or modified (by a single judge in chambers).
In a footnote to its published dismissal of a s 28(3) review challenge ( NZSC 70), the full bench declared “Glazebrook and Arnold JJ are members of the panel to decide this application in terms of Howard v Accident Compensation Corporation  NZSC 31 at .” This footnoted approval was despite Arnold and Glazebrook JJ issuing the ruling being reviewed.
Howard v ACC was a judgment refusing leave for a lay litigant’s application two months earlier, a judgment issued without hearing and unreasoned. It merely stated on this issue, “A decision under s 28(3) is to be made by the ‘Judges of the Supreme Court who together have jurisdiction to hear and determine a proceeding’. The subsection has obvious application to decisions made by a single Judge under s 28(1) or (2) being reviewed at the subsequent hearing of the substantive appeal. In such circumstances, the Judge who made the decision would probably be involved in the exercise (which is why McGrath J has participated in this decision).” No party had addressed this legal point.
The upshot was a violation of what are generally regarded as the two most essential rule of law principles, namely; that judges not act in their own cause and that parties must have a right to be heard on new determinations.
An application for recall was immediately sought on grounds the Court was not allowed to rely on its own unreasoned decision to negate an essential legal precept, violating the second by denying the right to be heard in the process.
The full bench disagreed in  NZSC 80. In dismissing recall, the two page judgment stated the appellant had now had the opportunity to make submissions on this point of law, that the bench was “not persuaded that its interpretation of s 28(3), as set out in Howard v Accident Compensation Corporation, is wrong” and then declared, “The participation of Glazebrook and Arnold JJ on the Court was required by s 28(3).”
In two months’ time, the Supreme Court had gone from a “probably” to a “required” view that they act as judges in their own cause when a review was filed under s 28(3). And they justified this by claiming Parliament intended to give them this power.
Human Rights lawyer Dr Tony Ellis, when asked for comment, said, “The Judgment does raise and not give a satisfactory answer to how a single judge of the Supreme Court who has acted under his/her statutory power can then sit on a review of that decision as happened here. How the Supreme Court can justify that section 28(3) means the judge would probably sit needed proper determination not reliance on Howard v Accident Compensation Corporation  NZSC 31 where the legal point was not argued. One would have expected serious discussion of the English case of Pinochet, In re  UKHL 1;  1 AC 119;  1 All ER 577;  2 WLR 272 (15th January, 1999), where the principles of acting as a judge in one’s own cause are fully articulated. In my opinion s 28(3) indicates than Parliament means single judges with prior involvement would probably not sit.”