Supreme Court criticism

May 5th, 2012 at 2:30 pm by David Farrar

Phil Taylor in the NZ Herald has a lengthy article about criticisms of the Supreme Court.

I blogged a few months ago on this topic, after the Court Report did an episode on it.

Farmer is another who says expert commercial judges are needed and the Law Commission has noted, as part of its review of the law underpinning the courts, that such concerns exist “in the commercial community”. It suggests expert panels be set up, while Attorney-General Chris Finlayson recently said “there is much to be said for some specialisation in the High Court”.

The Law Commission, however, has indicated many judges are against it and senior barristers have told the Herald that Chief Justice Sian Elias is opposed to formal specialisation and expects every judge to have broad competence.

Specialisation seems a very sensible idea to me. It won’t solve all the issues about the , but it will be beneficial at lower courts, and over time may flow through to the .

8 Responses to “Supreme Court criticism”

  1. Alan Wilkinson (2,435 comments) says:

    It seems bizarre that every other profession specialises and so do lawyers until they become judges. I imagine that Elias sees big issues with loads and backups in such a small jurisdiction.

    It seems to me the Court of Appeal has at least as much of a credibility problem as the Supreme Court with its inability to address miscarriages of justice other than on points of law.

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  2. Dick Prebble (60 comments) says:

    Note to self: Never read Phil Taylor’s articles again.

    The criticisms may very well be valid, but I hate a journalist who uses sensationalist language to try and get points across in stories rather than letting facts speak for themselves. For example:

    The April 2010 edition of the respected international journal looked at trust law in a variety of countries.

    The journal is co-edited by Molloy – a frank critic of the profession and the judiciary – and has a stellar international editorial board.

    It is unusual that criticism of the Supreme Court is so public and those voicing it include the likes of Farmer.

    If it was an opinion piece then it’d be fine but for a news story it’s just poor writing.

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  3. Dick Prebble (60 comments) says:

    (And then later we find out: Farmer: “As (losing) counsel in the case, I do not comment here on the outcome…” Hmm, perhaps you could have added that to the beginning of the article when you wrote that Farmer was a vocal critic?)

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  4. Aredhel777 (383 comments) says:

    Quite frankly I am appalled that Ted Thomas has not been stripped of his positions in the Auckland Law School and elsewhere after the Farmer emails debacle. He is dishonest. If there is anyone I would listen to about the workings of the Supreme Court, it’s not him, or Farmer for that matter.

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  5. F E Smith (3,504 comments) says:

    The former (pre-2004) Court of Appeal didn’t have a good reputation on commercial matters, and that Court was promoted to become the SC.

    I do find the criticism odd, most of the judges were commercial litigators prior to elevation. If you want a topic that neither the current SC or the CA know much about then just check out how many of them were criminal lawyers…

    I am also amused that Jim Farmer QC is so often leading the charge against the Court; were it not for his little ‘indiscretion’ a few years ago he may well have been sitting on the SC by now!

    And Ted Thomas should know better.

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  6. Nick R (941 comments) says:

    Specialisation on the High Court and above will be extremely expensive. Work out how much it will cost expert lawyers in fields like competition, tax, banking & finance etc to give up their private practices. Then be prepared to pay them to sit around doing nothing while the HC continues its basic diet of murders and P cases.

    This against the background of a Govt which is rumoured to want to cut numbers of judges to save money.

    Ain’t going to happen.

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  7. rouppe (1,231 comments) says:

    I wonder how many appeals would be avoided if we had some specialisation so that some small point of law can’t be used to suggest the trial judge got it wrong

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  8. Nostalgia-NZ (6,430 comments) says:

    I agree with what Dick Prebble says, for a serious subject the adjectives in the article show the writer to have been influenced by those he sought advice from. A more balanced piece might have looked at the tactics of Ted Thomas and his ‘beholding’ statements to the press to show there are fractures among the Judiciary and ex Judiciary as to even what the fundamentals of due process are. An in depth look at the players might have revealed personalities rising above the fair administration of Justice.

    The Courts inability to deal with Miscarriages of Justice, as said above in post #1, other than with points of law puts the Country in a worse position that when there was access to the Privy Council. Holding Tipping out as some shining beacon completely overlooks the fact that a decision he was involved in was scythed by the PC critical of the COA placing themselves in the role of a Jury and for other reasons. Personally, I can’t see how the Judges involved in that case could have remained on the Bench if it weren’t for some ‘insulation of cause’ that seems to slip into the interview when Ted Thomas and Farmer despite the well known interference against Bill Wilson.

    It seems to be a question of the validity of process, and influence of partisan cause that is the first problem with The Supreme Court, and with that the question of what they’re there for, to serve or to patronise? The addition of ‘experts’ in particular fields doesn’t have to be a major problem. A full bench of specialists on Tax Law is not required for example where one would suffice and give guidance on points of Law or the Legislation. That this even comes to the public forum shows basic gaps that common sense could close. As for abridged judgements, counsel must be able to ask for specific rulings on issues if they fear they might be bundled up rather than answered individually. From the other point of view the abridge judgements are well capable of being addressed by the Court itself if there are complaints about them, or fears raised that judgements aren’t showing in depth deliberation in key areas giving rise to concern that the Court might be in some case doing that deliberately – justice must seen to be done.

    I’m sure that’s enough from me to get in trouble on one day, but we should all be reminded that there are cases now, years old that are still flopping around because of lack of boldness by the Bench to speak out in the manner most nzers think they should in areas of MOJs for example. But alternatively, we have ‘bitch slapping’ by retired Judges, raised prestige of Judges unable to deal properly with the type of cases that won’t go away and not enough attention on the fair administration of the Law for all.

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