The Supreme Court

December 15th, 2011 at 9:00 am by David Farrar

I 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.


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.

The Thomas/Farmer e-mails

August 6th, 2010 at 11:00 am by David Farrar

The Herald has put online 50 pages of e-mails related to the Justice Wilson complaints, between former Judge Ted Thomas and QC Jim Farmer.

They are a fascinating read, and quite extraordinary – especially as the friendship gets strained on the issue of Justice Wilson. The Herald summarises:

As time passed and Sir Edmund pressed Dr Farmer to come forward, the emails between the two good friends became strained.

When Dr Farmer suggested that Sir Edmund might have leaked information to a controversial blogger, the retired judge replied that the comment made him “unbelievably angry”.

“I note that you are distressed. You sound like Weatherston,” Sir Edmund wrote, referring to Clayton Weatherston, the man found guilty of killing Sophie Elliott.

“We are all distressed. Those who have expressly used the word ‘sick’ to describe how they felt about this whole sorry business include you, me, the Chief Justice and the Attorney-General. To make matters worse, it is a distress that could have been avoided if Alan had followed your original advice and tabled the true facts with the Chief Justice at the outset.”

The blogsite they refer to is the one by Vince Siemer.

More pressure on Justice Wilson

April 10th, 2010 at 7:42 am by David Farrar

The Weekend Herald has two articles on the embattled Supreme Court Justice Bill Wilson.

This article reveals that former Court of Appeal Judge, Sir Ted Thomas, has written an 18 page letter to the Judicial Conduct Commissioner:

Sir Edmund (Ted) Thomas, formerly of the Court of Appeal, wrote an 18-page complaint to the Judicial Conduct Commissioner, raising concerns that Justice Wilson had failed to fully disclose a debt he owed a senior lawyer at a time the lawyer argued a case before him.

This was to QC Alan Galbraith.

Sir Edmund’s complaint sets out respects in which he asserts Justice Wilson failed to meet required ethical standards of judicial conduct.

He added: “Based on my 43 years’ or so experience at the bar and on the bench, I believe that any other judge I have known would have stood down or made a complete disclosure.”

The bigger issue, in my opinion, is not the original decision to hear the case, but the failure to disclose the debt to fellow Supreme Court members.

According to a copy of his complaint obtained by the Weekend Herald, he considers the matter is too serious for the conduct commissioner to refer it to Chief Justice Sian Elias.

He wrote that this course of action should be ruled out because of the horse-racing interests Dame Sian, her husband, Hugh Fletcher, and Justice Wilson shared until recently.

If it is not referred to the Chief Justice, then that is effectively saying it is a potentially sackable offence, and it is hard to see how Justice Wilson would not resign, rather than undergo a judicial conduct panel.

The more serious revelation is in their second article:

In addition to the fact that Justice Wilson had not made full disclosure to the Court, Sir Edmund had understood that Galbraith had been pressing Justice Wilson for payment in 2007.

Which indicates it should be top of mind for disclosure.

“Mr Farmer was extremely critical of Justice Wilson’s failure to disclose the indebtedness and endorsed a comment made by Mr Carruthers [Colin Carruthers, QC] that ‘Bill [Justice Wilson] has feet of clay’.”

Sir Edmund states that he was told that Carruthers, a friend of Justice Wilson, “had tried and tried to persuade him to disclose the indebtedness but he had adamantly refused”.

This had become more distressing for those in the know after the Supreme Court ruled on July 3 last year that on the basis of information provided by Justice Wilson, there appeared to be no basis for a finding of apparent bias.

The part I have bolded appears to be a smoking gun.

It is one thing to have overlooked disclosing the debt to the Supreme Court as it was not top of mind, and you did not consider it potentially relevant.

But if a senior QC had been lobbying you to disclose the debt, and Justice Wilson refused to do so, then he was deliberately concealing the information from his fellow Judges, and not allowing them to decide for themselves if the debt was material.

The time-frame is not absolutely clear, but it looks like the entreaty from Mr Carruthers was made prior to the first Supreme Court hearing. If that was the case, then I’d say that has made the position of Justice Wilson untenable – a conclusion I have not been willing to make previously.

Sir Edmund records that he spoke to the Chief Justice by phone on July 20 and read her the notes he had made of his communications with Farmer but did not disclose Farmer’s identity.

Dame Sian had told him that she had received “a categorical assurance” from Justice Wilson that he was not “beholden” to Galbraith. She felt unable to act when the source was anonymous and in the absence of a formal complaint. The Chief Justice was “sickened” by what he told her, Sir Edmund wrote, and repeatedly asked him to persuade his source to come forward and make a formal complaint.

Which has effectively happened with Sir Ted revealing it was Jim Farmer. And if Justice Wilson did make a “categorical assurance” to the Chief Justice, it again makes things worse.

QC backs SFO Director against attacks

September 25th, 2008 at 10:00 am by David Farrar

QC Jim Farmer has criticised Helen Clark and Michael Cullen for their attacks on the Director of the Serious Fraud Office. Farmer is a past president of the Bar Association.

Jim Farmer said criticism of Mr Liddell’s judgment by Prime Minister Helen Clark and her deputy, Michael Cullen, was wrong and unwarranted.

Mr Liddell’s evidence was uncovered in the SFO investigation and showed that Mr Peters had a $40,000 debt paid for him by the Spencer Trust, contradicting his version that he paid it himself.

Dr Farmer said Mr Liddell had a simple choice: whether it was responsible to “sit on” relevant information, or to hand it over.

And Labour wanted the information supressed, because it reveals that Peters broke the Cabinet Manual and Register of Interests even more blatantly than in the Owen Glenn case.

“He has obviously taken a responsible decision. It is very defensible on its merits and it doesn’t warrant attack from politicians, particularly personal attacks in the form of saying he has poor judgment.”

Dr Farmer may not understand that for Clark and Cullen, a public servant exercises poor judgement if they do not act in the best interests of the Labour Party, as opposed to acting in the public interest. You see they have convinced themselves that nothing is more important for the public good than them remaining in power, so anything that may damage that is automatically poor judgement by the public servant involved.

Dr Farmer said there was no formal requirement for Mr Liddell to consult Crown Law and he had “no idea” why Helen Clark and Dr Cullen were suggesting this.

“In carrying out the investigative duties, the SFO and the director are intended to be independent and operate without influence from anyone,” he said.

“Running off to Crown Law or the Solicitor-General to get advice – or approval, if that’s what Dr Cullen is suggesting – doesn’t seem to be obvious or even right.”

Indeed. And in fact a growing number of Government Departments no longer even use Crown Law for their legal advice or representation in court.

Media on Henry and Peters

August 20th, 2008 at 6:17 am by David Farrar

The NZ Herald reports:

The immediate past president of the Bar Association, Jim Farmer, QC, says the Law Society could be interested in the way Mr Henry is paid. …

Mr Henry told the committee that none of Mr Glenn’s $100,000 was used to pay for the $40,000 paid to Mr Clarkson’s solicitor for the costs settlement in March 2006.

How can he know this? If $100,000 from Glenn went into Henry’s bank account and he paid $40,000 to Clarkson from the same account, then it is all mixed in together. Possibly the $100,000 went into his business account and he paid the $40,000 from his personal account – in which case that conclusion would be more warranted. This would be the correct way of doing it, as the $40,000 Henry paid is not a tax deductible expense. It was not a debt he owed, so he should have paid it out of his after tax income, not his pre-tax income.

And while they are not issues for the Privileges Committee, I have received expert advice that the $40,000 payment was a gift to Peters and should have had gift duty paid on it by Henry. If Henry failed to pay gift duty on it, then Peters is liable for the gift duty.

Dr Norman raised the question of the $40,000 costs and said yesterday he had received a tip-off that it could be an interesting line of questioning. He said the $40,000 payment was more clear-cut than the Owen Glenn donation. “It’s absolutely black and white.”

Mr Peters had a personal debt and Mr Henry paid for it, he said.

“If you have got a debt and someone pays it for you then you should declare that someone had paid it, even if you don’t know who did.

Russel Norman is quite correct that the $40,000 is black and white compared to the other issues.

“There is just some pool in which debits and credits seems to float. It’s incredible – in the order of hundreds of thousands of dollars both ways – and it is very hard to prove anything.”

One question is why is it done in this way? Why not set up a legal trust with some trustees to fundraise for the legal bills? Have WInston declare his beneficial interest in the trust. That is how Nick Smith did it, and would seem to be a far more appropriate way to do it.

Dr Farmer described the relationship as “extremely unorthodox”.

Being paid by some third party [Owen Glenn] and the client not knowing was unheard of, he said.

So was the personal payment of $40,000 by Mr Henry.

“I think it might be of concern to the Law Society,” Mr Farmer said.

“Is it right for a barrister to receive $100,000 from a third party where there has never been a fee note rendered to the solicitor instructing him? I would have thought the Law Society would have real concerns about that.”

The president of the Auckland District Law Society, Keith Berman, said it was also very unusual.

“The issue which is uncertain is whether Brian is handling money on behalf of a client or just receiving money in payment of a bill. But as I understand it, he doesn’t issue a bill.”

Interesting issues indeed.

Tracy Watkins writes in the Dom Post:

But Mr Henry’s disclosure that he personally paid the $40,000 in court-ordered legal costs against Mr Peters means it could be considered a gift.

Mr Peters and Mr Henry were at odds over who made the payment, with Mr Peters suggesting he had paid it himself.

How can you not know whether or not you paid $40,000 to Bob Clarkson? If it was $400 maybe, but $40,000?