Chief High Court Justice Geoffrey Venning scrapped another page of New Zealand’s unwritten Constitution in a recent ex-parte ruling which imposed new limits on court access based upon the judge’s solitary musings. But the greater story may be Attorney-General David Parker’s post-determination submission in July asserting Venning had “correctly decided” new constitutional law despite the judge acting on his own initiative, giving no notice and entertaining no submissions.
By Judgment Rafiq v Whata [2019] NZHC 1193, Venning J accepted Parliament’s Senior Courts Act 2016 mandates NZ judges can no longer issue indefinite barring orders against persons judged to be vexatious litigants but disagreed with the Act’s three year default term limit against those currently encumbered by barring orders of indefinite term. Venning J also declared a five year limit would extend from 1 March 2017, being when the Senior Courts Act 2016 came into force, rather than the date each indefinite order took effect. Venning’s ruling defied the Act’s transitional provision that “All… orders… and generally all acts of authority that originated under the relevant Act or another enactment continued or repealed by this Act … must be treated as if they originated under this Act.”
As background, the Senior Courts Act 2016 repealed the Judicature Act 1908, a statute which had provided High Court judges powers under section 88 to issue unlimited banning orders against individuals deemed to be abusing court access. This included kiwisfirst publisher Vince Siemer whose four year battle with former Attorney-General Chris Finlayson ended with a general banning order in March 2016, but not before the A-G was exposed for pleading ‘filed defences’ constituted actionable abuses and a censored court transcript revealed what length a judge would go to coach the Attorney-General in getting his pleadings up to minimum standard.
As New Zealand judges often do, Venning professed Mr Rafiq’s application to file a new claim – which was a first step procedural requirement of the prohibition order against him – provided judicial license to make new law. Helpfully, Mr Rafiq’s application was ‘without notice’ which meant Venning J had no other party to consider and Rafiq was barred from making submissions on the legal issue the judge sought to determine. Venning’s force majeure was the knowledge Mr Rafiq would also be prevented under the same order from appealing His Honour’s novel legal ruling, so it would be destined to remain as firm a fixture in New Zealand’s insular jurisprudence as any enactment duly considered by the legislature.
Venning J immediately dispatched a broadcast to every court and tribunal in New Zealand advising of his new five year prohibition against litigants deemed to be vexatious litigants under the old statute. Tellingly, the Law Society and NZ Bar have been silent. The court registry confirmed nothing in the case file other than Venning’s ruling. Lawyers either fear to criticize the constitutional abuse of power or consider Venning’s ruling to be a questionable but helpful limitation on erratic lay litigants poorly pleading remedies on laws designed primarily as window dressing, such as the New Zealand Bill of Rights Act 1990. Judges want it known that rights abuses are not a problem in New Zealand and commonly chastise lawyers who plead civil rights remedies against the Crown. In one 2011 case, Judge Rhys Harrison awarded costs against the lawyers for representing a couple whose children were taken away by the since dissolved Child Youth and Family Services after the lawyers did not accept His Honour’s dogma that Crown agencies cannot be sued for rights abuses.
Enter stage left in the current drama; High Court Justice Matthew Palmer, former deputy solicitor general and son of New Zealand’s constitutional scholar and a fleeting Prime Minister Geoffrey Palmer. In June of this year Palmer J issued a Minute seeking submissions from the Attorney-General and Vince Siemer in respect of Judge Venning’s Rafiq ruling, Judge Palmer openly questioning the application of Venning’s reasoning as it relates to similarly placed parties rather than the evident unlawful process followed. It was when Siemer questioned Palmer’s own process of inviting the non-party Attorney-General to oppose his lay litigant analysis of Venning’s ruling relating to his own rights without any right of reply that the Attorney-General through counsel emailed the Court alleging Siemer was acting vexatiously and, by complaining, trying to “change the fundamental nature of New Zealand’s judicial system” which, the Attorney submitted requires “no need to specify a rule or technical justification for issue procedural directions if they are required as a matter of natural justice to fairly dispose of an issue”.
Ultimately the Attorney-General provided his legal submissions in this kerfuffle first, with the submissions by Siemer following, each providing more than a slight insight into how New Zealand court justice functions.
Palmer J has yet to issue a judgment.
