Secrecy at NZ Supreme Court Raises Concerns

supreme court judgesThe slogan “Justice should not only be done but should manifestly and undoubtedly be seen to be done” adorns the front window of the New Zealand Court of Appeal. Former Court of Appeal President William Young used to joke about how many appellants referred to this slogan when he sat on the Court of Appeal. The point of Young’s joke appeared simply that the recitation occurred frequently.

Justice Young now sits on the New Zealand Supreme Court, formed eleven years ago, in part we are told, to remedy systemic denials of justice the Privy Council found in 2001 had been committed by the Court of Appeal through ex parte and often secret dismissals of appeals. This is notwithstanding some judges deemed guilty of the abuses at the Court of Appeal being appointed to the Supreme Court.  The lawyer who had argued unsuccessfully in favour of the secret system before the Privy Council, Simon France, was appointed a High Court judge. His wife, Ellen France, is current President of the Court of Appeal.

But all this history is not relevant, according to New Zealand’s Supreme Court judges who publicly asserted in Chapman v Attorney General [2011] the new Supreme Court “provides accessibility to appellate review of the Court of Appeal that was not available at the time of (the abuses found by the Privy Council to exist).”

Astute observers see a hypocrisy, claiming the Supreme Court is increasingly not doing its job and too often issuing secret rulings. At least twice in the last 45 days, the Supreme Court told appellants to go back to the Court of Appeal to seek recall of a judgment rather than allow their appeals to the Supreme Court to advance. Both actions were by secret minute, a fact that only came to light in B v Waitamata District Health Board because Ellen France referred to one of those minutes when recalling and reversing her judgment, and in Rabson v Chapman because Rabson sought recall of the Supreme Court’s stiff arm to his appeal.

Curiously, the appellant’s name in “B” is suppressed and France P’s reversal was on an order of security for costs, an issue which the Supreme Court ruled was “well settled law” in no less than eight judgments last year alone as its reason for not allowing appeals against security orders. All this begs questions of how the Court of Appeal President got this “well settled law” wrong, how often this occurs and why is the Supreme Court refusing to correct the legal failures but, instead, choosing a more secretive, extraordinary and less certain remedy. This approach is made even more curious because the Supreme Court issued an edict in Siemer v Stiassny [2013] NZSC 11 declaring security orders by any judge of the Court of Appeal are not reviewable by the Court of Appeal.

While little is known about “B”, in Rabson v Chapman, Malcolm Rabson has become an infamous first division lotto winner and Wayne Chapman is the court-appointed trustee who is alleged to have taken his house off him. Rabson’s appeal to the Court of Appeal against Chapman’s actions was delayed. Rabson was bankrupted and the Registrar refused to waive security for costs. His appeal rights expired in March 2013. Subsequent emails surfaced as a result of a Privacy Act request between Registrar Clare O’Brien and Chapman which demonstrated a complicity by the Court in the delays, with O’Brien offering Chapman an expedited ex parte audience with the judges.

What happened next could be front page news in any law respecting country. A full bench of the Court of Appeal, including former President and now Supreme Court Judge Mark O’Regan, agreed to resurrect Rabson’s dead appeal at Chapman’s request for a strike out hearing in April 2014, a year after the appeal had incontrovertibly been deemed abandoned. In addition to the appeal being long dead, Rabson and the Official Assignee had both informed the Court Mr Rabson had no standing. The hearing proceeded without him, then, in a reserved decision, the full bench ordered Rabson to pay costs to Chapman for the hearing after accepting Rabson had no standing and could not be heard at the hearing.

Rabson sought to appeal this judgment of O’Regan, White and Miller JJ to the Supreme Court on the simple ground first year law students are taught; courts cannot award costs against parties for hearings they are accepted to have no standing in. Glazebrook J at the Supreme Court issued a private minute telling Rabson to seek recall from the three stooges. Rabson sought review of Glazebrook J’s private direction on the ground his statutory right lay with the Supreme Court and not the extraordinary remedy of recall. Glazebrook teamed up with Young and Arnold JJ to uphold her previous direction, only this time by public judgment.

Lawyers are telling Rabson to take the offer of backdoor justice but Rabson, who says he has lost everything to the NZ Courts’ backdoor dispensary, wants a public declaration from the Supreme Court that not one, but three of the Court of Appeal’s most senior judges could not get the simplest law correct in his case. He has long held that Justice Mark O’Regan conspired with Chapman to fleece relationship property due him – property valued at $1.2 Million by the Court of Appeal in December 2011. Sounds like the mad ranting of a disgruntled loser; that was until last month, when Chapman filed documents with the High Court stating this trust has dwindled to $163,747.13 despite no payouts to Rabson or his creditors. Chapman has repeatedly refused to provide any account information for the trust to Rabson.

These very recent examples raise legitimate concerns as to whether the Supreme Court truly offers “accessibility to appellate review of the Court of Appeal that was not available” before its formation.

To Rabson at least, the hypocrisy of what the Supreme Court judges are doing relative to what they say is not lost. He says the sign above the Supreme Court door should read “Trust in what we tell you is justice and not your lying eyes”.