The Supreme Court
December 15th, 2011 at 9:00 am by David FarrarI blogged a while back on the Supreme Court blog that has been started up. Two of the posts were quite critical of the Court’s decision on the Urerewa case, including former Judge Ted Thomas who noted:
The Chief Justice’s unnecessarily wide statement that the police cannot do anything that is not authorized by statute is based on a misunderstanding as to the way police powers developed.
and
The Chief Justice also held that an unlawful search is necessarily an unreasonable search. I believe that the view of the majority in Jefferies to the opposite effect is correct. Tipping J was not amiss in describing the contrary view as “absolutist” (at [226]).
Now it is not unusual for lawyers to disagree or even Judges to disagree. However when a number of lawyers state the Chief Justice was plainly wrong in comments she made, you do take notice. And I have heard lots of criticism over that judgement from others in the legal community.
But it was just once case, so i thought. Until I watched The Court Report last week, and they had no less a person than top QC Jim Farmer on, voicing his concerns (most diplomatically and respectfully) about the performance of the Supreme Court. dr Farmer’s comments come from a blog post he made back in August.
My criticisms, if I can express them with respect, are limited to 2 recent cases.
The first relates to the superficial way in which the Court dealt with the important competition law issues that were rightly brought to it in Commerce Commission v. Telecom (the 0867 case). As (losing) counsel in the case, I do not comment here on the outcome – indeed from the point of view of the Commerce Commission wanting to establish a precedent that clarified the law that may not have been that important – but I think I am entitled to endorse the views of many others practising in this important area of law and policy that we were entitled to much better principled guidance than we received in the short Judgment that was delivered.
Dr Farmer said on TV that the top court should be perhaps hearing fewer cases, and giving them more consideration as befits their role as the final arbiter of the law. Their judgements should clarify, not confuse the law.
We see this again in the NZSC blog on the above case:
Interestingly, the Chief Justice preferred the view that error of law is reached “whenever a body entrusted with a determination of fact has reached a conclusion that is clearly wrong or is unreasonable.” This wording, and in particular the emphasis on the fact-finding nature of the decision-maker, is surprising.
And NZ Lawyer Online reports:
I can’t recall a time when our most senior local court – the Court of Appeal before 2004 and the Supreme Court since then – has been the subject of so much criticism.
This suggests to me that the dis-satisfaction is not just the normal disgruntlement, but that there are real issues with the quality of the decisions of the Supreme Court. That is not to say the decisions are wrong, but that they are not providing the clarity of the law which is so vital in a country of laws. The criticisms are also that basic errors of fact are being made also:
Tax barrister Geoff Harley spoke a couple of weeks ago to a large gathering of accountants and lawyers. His topic was the Supreme Court’s decision in Penny and Hooper v Commissioner of Inland Revenue [2011] NZSC 95. He said the Court had got the facts wrong (in [3], [11], [14], [35], and footnote 7 of the judgment), and he proceeded from that platform to criticise various aspects of the Court’s reasoning.
Writing in the latest part of the New Zealand Business Law Quarterly, Paul Scott, a senior lecturer at Victoria University of Wellington, was highly critical of the Supreme Court’s decision in Commerce Commission v Telecom Corporation of New Zealand Ltd & Anor [2010] 1 NZLR 577. Justice Blanchard has said extrajudicially that the decision in that case has aligned New Zealand law with that of Australia and has widened section 36 of the Commerce Act 1986. Scott says bluntly, “The decision has done nothing of the sort. The Supreme Court has missed the point, misread Australian law, and taken a wrong turn…” He adds that the decision “is also internally inconsistent”.
Stephen Franks has noted:
The skids are under our Supreme Court in its current form.
Last night’s Court Report on TVNZ 7 would look innocuous to non-lawyers, but Dr Jim Farmer QC’s open public criticism of the Court’s quality is highly significant. Dr Rodney Harrison QC was there for balance, but his defence of the Court was lame. That three QCs were discussing the problem on TV at all is extraordinary in NZ. Our legal establishment has discreetly enforced the conventions against lawyer public comment that might undermine respect for the courts in which they practice. Concerns about judicial quality have been inhouse whispers only.
Dr Farmer’s anxiety was made public in a post on his website in August. There too he was careful, to the point of parody, to emphasize his respect for the Court. But what he says is a mild version of the worries widely expressed among eminent barristers.
Judges too are deeply frustrated. Court of Appeal judgments are commonly more useful than the superior court judgments that supersede them. Instead of simplifying and clarifying, too many Supreme Court decisions add complexity.
It was very unusual to have such an eminent QC raise his concerns about the court in such a public way. The concerns should not be brushed aside.
Of course only the Court itself can take note of the criticisms. Appointments are until age 72, unless there is very serious misconduct.
But there is also an avenue open to the Government, if they wish to take heed of the concerns. Section 17(1)(b) of the Supreme Court allows the Attorney-General to appoint a sixth member of the court. Perhaps it is time to do just that.
UPDATE: I got two cases mixed up. The blog post is on the recent case Vodafone v Telecom, whereas Jim Farmer’s comments related to an earlier and unrelated case (Commerce Commission v Telecom). Also the Supreme Court blog authors have e-mailed to stress their article was on a narrow technical area of the law, and should not be seen as criticism of the Supreme Court or Chief Justice.
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December 15th, 2011 at 9:14 am
The bit about the Penny and Hooper v Commissioner of Inland Revenue case, and the Court getting it wrong, are incorrect. The way these two set up their affairs were clearly a tax avoidance activity and so they lost their case. Quite simple really.
In its judgement, which a lot of people did not bother to actually read – so focused were they on claiming the sky was about to fall in, the Court clearly stated that trading as a company is in itself not a tax avoidance activity and perfectly acceptable; the Penny and Hooper case came down to the timing of establishing companies and trusts and why.
Vote:December 15th, 2011 at 9:14 am
*invokes Andrew Geddis for comment*
Vote:December 15th, 2011 at 9:19 am
Viewed against the sudden disestablishment of our ability to access he Privy Council, the speed of the change and the ideological bent of the perpetrators of the establishment of the NZ supreme Court all give cause for alarm.
Some of the rulings that have eminated as Decisions are more representative of political and idealogical pronouncements than a clarifying of the law.
With the unprecedented implied questioning of some of the more questionable rulings by very senior members of the profession alarm bells are certainly ringing IMHO.
A good first task for Mrs Collins maybe.
How about High Commisioner Faulkland Islands for Dame Sian perhaps.
Vote:December 15th, 2011 at 9:21 am
Judicial retirement age is 70, not 72.
Vote:December 15th, 2011 at 9:38 am
Given guaranteed (substantial) Government sourced income from the age of 65 thru 70, would it be rational for Judges to be exempted from receiving National Super for that period?
Vote:December 15th, 2011 at 9:41 am
From a totally non legal point of view –
Vote:Why not make the NZ Supreme Court a branch of the Australian (Federal) supreme court, and have a much bigger talent base to draw from, instead of New Zealand’s much smaller pool? I know it wouldn’t go down too well with the general population, but…
December 15th, 2011 at 9:45 am
Sadly I think the ship of reinstating appeals to the PC has sailed. An alternative would be to adopt the hong Kong approach and appoint non-New Zealand jurists to the court, thereby widening and internationalising the talent pool.
Vote:December 15th, 2011 at 9:54 am
Time for some weeding. This is what happens when you have pinkos running the show at the Supreme court, all set up by Helen Clark.
Vote:December 15th, 2011 at 10:00 am
Sigh. Dame Sian Elias was appointed to the bench under a National government. Yep – big “pinko” conspiracy alright.
Vote:December 15th, 2011 at 10:04 am
Well, if there’s a quality issue with some of the SC judgements, then there also appears to be a quality issue with those who have chosen to speak out against convention and undermine the credibility of SC.
Sounds like your average political posturing to me, mixed with a dash of sour grapes.
edit: @civil serpent… lol. Love the name.
Should be dealt with via an internal review system, which it probably is.
Vote:December 15th, 2011 at 10:12 am
gazzmaniac – You mean ‘High Court of Australia’ – unfortunately there is confusion in naming of higher courts in various countries. In Australian states, what NZ calls ‘High Courts’ are called ‘Supreme Courts’. The federal equivalent is called ‘Federal Court of Australia’ avoiding any reference to ‘high’ or ‘supreme’. In UK a ‘Supreme Court’ has replaced the House of Lords Judicial Committee and the Supreme Court judges are also the Privy Council judges.
The NZ Supreme Court could have been worse since AFAIK Helen Clark and Margaret Wilson planned to ‘hand pick’ the judges to deliver ‘social justice’. It seems they had to back down otherwise the Court would have had no credibility and hence vulernable to being re-constituted with a change of government. Hence the four longest serving appeal judges were appointed, together with the Chief Justice (which IMO was a political appointment thinly disguised as transitioning the CJ).
I think the tax case criticism was made because there seems to be a strong view among tax professionals that tax law should be interpreted in a ‘black letter’ manner (ie abusive taxpayer behaviour is OK if it complies blow by blow with the law) rather than a purpose based interpretation. Black letter interpretation does make life easier and provide business opportunities for tax professionals. Purpose based interpretation does put them right in a minefield when they are cooking up their cute little plans. Hence it is not surprising the Supreme Court is copping flak over tax cases. However is it fair and just that the big boys with lots of spare cash can try and rort the tax system when little boys in similar circumstances would not dare try.
Vote:December 15th, 2011 at 10:13 am
Judicial activism, another legacy of Comrade Clark’s regime.
Vote:December 15th, 2011 at 10:21 am
The Hong Kong Court of Final Appeal sits as a bench of five, usually with four permanent (local) judges and a fifth non-permanent (foreign) judge (usually retired judges from the UK, Australia and New Zealand). The idea is that if the court consistently comes down 4-1 with the foreign judge in the minority, that should raise questions about the credentials of the judgments of the four local judges. Might not be a stupid idea.
Vote:December 15th, 2011 at 11:09 am
Section 17(1)(b) of the Supreme Court allows the Attorney-General to appoint a sixth member of the court. Perhaps it is time to do just that.
Er, whom do you propose?
The idea is that if the court consistently comes down 4-1 with the foreign judge in the minority, that should raise questions about the credentials of the judgments of the four local judges.
Or the foreign minority.
Vote:December 15th, 2011 at 11:34 am
@Manolo. It would be wrong to lay blame for judicial activism at the feet of Helen Clark; in truth, you’d be better off blaming Geoffrey Palmer, and his string of reforms in the 1980s which allowed judges to interpret a range of vague statutes and legislative slogans to suit their “we know better than you” views of society.
Think 1985 Law Commission Act which has provided retired judges with fertile ground, think “principles of the Treaty of Waitangi” so usefully defined by the Court of Appeal, think of the New Zealand Human Rights Act for which Ms Morse should be entirely grateful,
Think also of the antics of the late and beloved (by some) Robin Cooke in his various guises, said to be New Zealand’s greatest legal mind, but whose ramblings were dismissed in 1997 by the truly distinguished Lord Goff (no relation!) of Chievely in the memorable phrase a crumb of analysis is worth a loaf of opinion.”
To be fair, Robin Cooke was a cut above the current crop, which probably goes a long way to support Jim Farmer’s case
Vote:December 15th, 2011 at 1:22 pm
How strangely quiet back then were all those raucous, strident voices raised today, alleging there is no mandate for the controlled sale of minority shares in a few assets. Where was this ‘no mandate’ brigade when Helen BB Clark, without a word of prior warning, severed our links with the privy Council and replaced it with an Antipodean junk heap.?
Vote:December 15th, 2011 at 1:23 pm
Sian Ellias is not up to the job.
Vote:December 15th, 2011 at 2:02 pm
“sigh”
It is easy for some of us to criticise the SC, especially if, like Dr Farmer, we were on the losing side of an important case. Mind you, Jim might have been on the SC by now if he had not had his brush with the law a few years ago…
I will point out, once again, that 75% of lawyers in NZ were opposed to the establishment of the Supreme Court. Nobody seems to have stopped and thought that there were good reasons for that.
The Court of Appeal at the time of the establishment of the SC did not have a good reputation in commercial cases. Getting a criminal appeal to the Privy Council was almost impossible, so 99% of NZ cases before the PC were commercial and the CA did not fare well in having its decisions upheld.
So the lawyers were not keen on removing the PC from our appellate system, and with good reason.
But, the fact is that it exists now and we have to make the best of what is a bad situation.
The appointment of the then CA bench to the SC was indeed a response to worries about the then Attorney-General, Margaret Wilson, hand-picking the Court that she wanted. Many of us had real issues with the then CA, but it was a far sight better than the idea of a hand-picked group leap-frogging to the top, perhaps with no judicial experience.
Let me remind you all, and especially you, KH, that the Chief Justice is one person on a bench with 4 others. She cannot be the one solely blamed for the decisions the Court makes. If there are decisions that you disagree with (and there are some that I disagree with), you need to see who voted which way on the decision before you assign “blame” (even though doing so may make you more of an idiot than you already are, because if you are so learned in the law why aren’t you up there yourself?).
Calling anything that the SC has done ‘judicial activism’ is just plain stupid. And I mean that, it is really, really stupid. The NZ courts are normally very mindful of both government policy and the intent behind legislation. If you want to see judicial activism, go to the USA, or even the UK (in some areas), but to say that it exists here is to show ignorance.
(and, yes, I mean to be that harsh, because it is a term used as a form of abuse by people who have no idea what they are saying and who have no actual examples of judicial activism to give us)
Indeed, granny.morris makes a great point: the last great judicial activist in the NZ judiciary was Robin Cooke, that great leftie jurist who ended up sitting regularly on the PC as a member of the House of Lords judicial committee. Since then, our judges have primarily been yes men (and women).
Appointing a sixth member of the Court would make no difference, by the way, because you merely appoint one vote among 5, so you probably won’t see much change. And, anyway, do you appoint a commercial expert because the SC can’t get the commercial stuff right, or a prosecutor because of the Ureweras case?
One last point- never take anything that Ted Thomas says without a huge bucket of salt. He is the ultimate curmudgeon, and often is outside of the mainstream of NZ legal thinking, and not in a good way.
It is normal for people to be disappointed with the top appellate court from time to time. The Aussie government recently blew a gasket over the HCAs malaysia decision, while the UK and US governments often have trouble with their SCs. The Court may also get things wrong from time to time. But that does not mean that the government should step in. That sort of interference with any court is unwarranted, unwelcome and unwise.
Vote:December 15th, 2011 at 2:22 pm
“if you are so learned in the law why aren’t you up there yourself?”
I could strongly criticise, and legitimitely so, Sir Thomas Eichelbaum for his mistakes in his report into the Peter Ellis case. As a former Chief Justice, he should not have made such obvious mistakes. I am perfectly entitled to criticise him even though I’m not “up there myself”.
Vote:December 15th, 2011 at 2:41 pm
ross,
you miss my point, but never mind.
Eichelbaum was hindered by the terms of reference that he worked with, and by the careful pro-Crown guidance of one Val Sim, then a Crown employee, whose payoff was to be made a Law Commissioner.
His report is actually pretty much correct, when you take that into account. But it is, in my view, wrong, when the wider picture and the other evidence that he did not consider into account.
So I do not criticise Eichelbaum at all for the conclusion he reached. I blame the MoJ, Crown Law and, specifically, Val Sim, for doing their utmost to ensure the report came to a conclusion favourable to them.
Vote:December 15th, 2011 at 4:14 pm
F E Smith, Eichelbaum did make some glaring factual mistakes. And the terms of reference, whilst a problem. did not prevent him from, for example, selecting more than two international experts. But he seems only to have wanted two. And his appointment of one of those experts was highly controversial. Eichelbaum’s close relationship with the Ellis trial judge was another issue. And the list goes on. For someone in Eichelbaum’s position and with his vast experience, it is difficult to imagine how he could make so many poor calls.
Vote:December 15th, 2011 at 4:50 pm
ross,
yeah, yeah. Read the part I wrote about Val Sim again.
But Ellis isn’t pertinent to this post by DPF, so I am not really inclined to discuss it further in this thread.
Vote:December 15th, 2011 at 7:27 pm
Don’t agree. One of the surgeons set up the structure before the top tax rate was raised and both surgeons were worried about professional negligence claims. The Court stated that there was nothing wrong with the structure itself but more the low setting of the market salary.
I don’t like the decision because it gives the IRD vague and uncertain grounds on which to beat taxpayers with a naughty stick. I recently watched a webinar with several top tax practitioners as well as the head of legal at IRD and mr IRD man got absolutely caned on the IRD’s interpretation of the case – he was stating that income of companies and Trusts should in the main be taxed in personal hands if the entities income was derived via personal services (excluding cases where the personal attribution rules apply).
I don’t see that interpretation anywhere in the NZ tax law.
Poor decision by the SC. Ellen France J in the CA got it right. Give her a medal.
Vote:December 15th, 2011 at 7:34 pm
Lord Birkenhead for the Supreme Court I say.
Time we had a legal mind of stupendous enormity in charge of our highest court.
Courthouse doors can always be widened relatively cheaply to accommodate any sized head!
Vote:December 15th, 2011 at 8:55 pm
“yeah, yeah. Read the part I wrote about Val Sim again”
Yeah you’re saying a vastly experienced former High Court judge and former Chief Justice was easily manipulated by an official…and he’s not responsible for any decisions that he made in the course of his inquiry (including obvious errors found in his report). Talk about passing the buck.
Vote:December 15th, 2011 at 9:07 pm
Ross,
don’t put words in my mouth and then pretend that you are accurately representing my argument. That is the lefty in you. I hate that, and I am not arguing it with you.
Vote: