Supreme Mystery Surrounds Rare Court Order

On 6 April 2016, a three-judge panel issued a Supreme Court judgment which directed the Registrar refuse filing of further applications from an appellant.  The order appears designed to insulate a 2015 ruling by Court of Appeal Justice Rhys Harrison.Rhys Harrison New Zealand Court of Appeal

According to the judgment, it is the fourth ruling of the Supreme Court in the matter SC105/2015 Creser v Creser.  The judgment makes reference to  a 10 March 2016 judgment not been made public by the Registry.  The judgment provided no reasons for the earlier secret judgment or for its filing ban other than to state “The Applicant’s conduct in relation to the judgment of Harrison J is an abuse of process; hence the direction in the order band.”  The alleged abusive conduct was not identified.

Intriguingly, the judgment failed also to identify the grounds it dismissed.  Mr Creser has now disclosed the judgment dismissed his application which sought the off-record 10 March judgment be publicly recorded to comply with the Public Records Act 2005, as well as for reasons to be provided for the dismissal where none had been.  He has released his application to demonstrate the Supreme Court considers such requests for basic transparency makes it a victim and those who ask for it ‘abusers’.

Similarly, Creser’s earlier application which resulted in the Supreme Court’s unpublished 10 March dismissal sought the 10 February 2016 judgment be recalled to record the Appellant’s ground of appeal against Court of Appeal Judge Rhys Harrison was “judge incapacitation”.

In that ruling [2015] NZCA 416, Harrison doubted Court of Appeal judges had jurisdiction to review decisions of its registrars to reject filings, doubted whether Mr Creser’s application constituted an application under the Rules and misstated Mr Creser’s appeal as an attempt to “amend” an earlier judgment when Creser was seeking to “enforce” it.

Mr Creser’s application to the Supreme Court alleged it is not possible for a sane and rational judge to doubt a judicial jurisdiction routinely exercised at the Court of Appeal, then doubt common definitions under its own rules as to what constitutes an application and finally confuse his only ground in a short application to the Court of Appeal.  Individually, and certainly together, these conclusions demonstrated judge incapacitation according to Creser’s original application.

The Supreme Court did not label the allegations and evidence scandalous.  Yet it has steadfastly refused to mention, let alone address, this single ground of appeal.  The evasion has left the legal community and public in the dark that this crucial question of a prominent judge’s basic fitness has been raised despite repeated vetting in the nation’s highest court.

One irony of the subterfuge is that whenever Parliament has considered proposed legislation which might make the judicial process in New Zealand more transparent and its judges accountable, the judges currently on the Supreme Court have vigorously opposed the proposed bills on grounds they are already accountable to themselves and to the public as a result of “the high visibility process” they operate in and the “rule of law requirement” that they provide reasons for their rulings.  In their 2003 response to the Judicial Matters Bill then before Parliament, New Zealand judges made a joint submission stating “(accountability is already) supported by the principle of open justice and the requirement now hardening into a rule of law, that judges give reasons for decision of any moment.  The openness of the judicial process reduces the prospect of misconduct and of it going unremarked and unchecked.”

Then again in 2011, in submissions to the Justice and Electoral Select Committee which claimed to have the support of every judge in New Zealand, the Acting Chief Justice of the Supreme Court represented the judicial process is a high visibility process: hearings are conducted in public and judges must give reasons for their decisions, which will be subject to appeal. These features of the judicial process impose an important discipline on judges and provide an effective protection against arbitrary or biased decisions.

Mr Creser intends to file a judicial misconduct complaint with the Judicial Conduct Commissioner on grounds he only asked for the judges comply with existing law they maintain an accurate record and that their attempts to conceal the true grounds of his appeal and secretly dismiss his application are personal abuses of office.