As often occurs in the affairs of the New Zealand courts, a decision released by the Supreme Court under cover of the year-end holidays has legal denizens scratching their heads.
The case, Smallbone v London, is filled with international intrigue and sex. A defamation claim brought by a former Kiwi diplomat living in England. Unusual for New Zealand, it is defamation case allowed a defended trial. More unusual, the case was decided by jury. $270,000 in damages was awarded.
Typical of New Zealand – none of this mattered. The trial judge, the pliable Joe Williams, took the initiative in setting aside the jury’s verdict two weeks later, claiming a post-trial affidavit convinced him the jury got it wrong.
The plaintiff appealed Judge Joe’s reversal to the Court of Appeal on grounds the judge lacked jurisdiction to set aside a jury verdict based upon an untested affidavit made and read post trial.
The Court of Appeal black-ops team of Harrison, Stevens and Miller JJ brilliantly circled the wagons around their hapless High Court compatriot in their dismissal of the appeal. To complete the process they implemented strict suppression orders around everything Judge Joe had looked at, had talked about and had eaten post-trial.
Smallbone appealed again to the Supreme Court which, on 17 December 2015, did a brilliant dodge. The highest court’s judgment refused to consider the appeal ground that Joe Williams did not have lawful jurisdiction to set aside the jury verdict. Their reason was “there would be no practical benefit in an appeal to this Court on the question of jurisdiction.”
What? You say. You read this correctly. Our highest court is in the position now of determining whether litigants are ‘practical’ in seeking redress of ‘jurisdictional’ violations by New Zealand judges. Better still, the Supremes entered the psychic realm in their decision, opining the defendants would have appealed and likely won an appeal if Judge Joe had not acted illegally – or, in NZ judge-speak, ‘it does not matter’ to practical people.
What no one would know by simply looking at the available court record is the trial which Joe Williams J declared null had consumed two weeks and 28 witnesses. This begs two obvious questions. Would the defendants – as the Supreme Court clairvoyantly concluded – have appealed, let alone won, if Joe Williams J had not acted legally or illegally? $270,000 is a lot of money but even if the Queen was “witness Z” as the NZ courts now infamously refer to him/her/it, it is a far from certain notwithstanding the Supreme Court of New Zealand’s tarot card reading that a pragmatic litigant would appeal such a decision with the hope of going through the significant expense of a new and lengthy trial they had already lost once – if they win the appeal.
But, as every recent New Zealand law school graduate can tell you, the greatest strength of our court system is the professional brilliance and perfection of our judiciary. Yes, that is “baa-ing” you hear in the background.