A 6th Supreme Court Justice

July 14th, 2016 at 1:14 pm by David Farrar

Chris Finlayson announced:

The Honourable Justice Dame Ellen France has been appointed a Judge of the Supreme Court and the Honourable Justice Stephen Kós will replace her as President of the Court of Appeal, Attorney-General Christopher Finlayson announced today.

The Honourable Justice Raynor Asher and the Honourable Justice Brendan Brown have been appointed Judges of the Court of Appeal.

Justice Ellen France graduated from Auckland University in 1981 and completed her Masters at Queen’s University in Ontario in 1983. After working at the Department of Justice, she joined Crown Law in 1992 and was appointed Team Leader of the Treaty Team in 1993. She was later Team Leader of the Bill of Rights Team before being appointed Deputy Solicitor-General (Public Law) in 1998.

Justice Ellen France was appointed a High Court Judge in 2002, a Judge of the Court of Appeal in 2006 and President of the Court of Appeal in 2014.

The Supreme Court Act says there will be five or six Justices (including the CJ). The normal practice has been five, but six is allowed. Will at least stop any 3-2 decisions!

The Law Society has pointed out:

The appointment of Dame Ellen France to the Supreme Court means that men and women are equally represented on our highest court, New Zealand Law Society President Kathryn Beck says.

Dame Ellen’s appointment from 22 July will mean the Supreme Court has a bench of three men and three women.

“As far as we can determine, no other common law jurisdiction has equal gender balance on its highest court. Judicial appointments are made on merit, and it is encouraging that the near-equal numbers of male and female lawyers in New Zealand are reflected on the Supreme Court.

The balance in other countries is:

  • US – 4M/3W
  • UK – 11M/1W
  • Australia – 4M/3W
  • Canada – 6M/3W
  • Ireland – 5M/4W

Ginsburg picks NZ over Trump

July 12th, 2016 at 3:00 pm by David Farrar

Stuff reports:

A US Supreme Court judge could become one of New Zealand’s newest residents if Trump becomes president.

Justice Ruth Bader Ginsburg has strayed from the usual apolitical public stance of Supreme Court Justices to tell people just what she thinks of presidential hopeful Donald Trump.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she told the New York Times.

“For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

But she did have a possible escape plan up her sleeve – one she said her late husband, tax lawyer Martin Ginsburg, would have liked.

“Now it’s time for us to move to New Zealand,” Ginsburg said, smiling ruefully.

Trump could be great for migration to NZ 🙂

In an interview with the New York Times in her chambers, Ginsburg talked about a stormy term and criticised the Senate for refusing to act on President Obama’s Supreme Court nominee.

Her colleagues have said nothing in public about the presidential campaign or about Obama’s stalled nomination of Judge Merrick Garland to the Supreme Court. But Ginsburg was characteristically forthright, offering an unequivocal endorsement of Garland, the NY Times reported.

The court has been short since Justice Antonin Scalia died in February, and Ginsburg said it was likely to remain short-staffed through most or all of its next term, which starts in October.

I suspect Garland may get confirmed by the Senate. If the polls continue to show Clinton well ahead, the Republicans will conclude better a moderate liberal like Garland than whomever Clinton would nominate if elected. Either way though it will see the end of a 30+ year Conservative majority.

Two tributes to Justice Scalia

February 18th, 2016 at 7:00 am by David Farrar

Former Obama advisor David Axelrod writes:

When the shocking news of Justice Antonin Scalia’s passing hit Saturday night, my mind raced back to a White House Correspondents Association dinner seven years ago, when we were seated together.

We bantered about my hometown of Chicago, where he had taught law before ascending to the bench. He opined on wine and music and generally lived up to his reputation as a man who told and enjoyed a good story.

And then our conversation took an unexpected turn.

Justice David Souter, Scalia’s longtime colleague on the court, had just announced his retirement, creating a vacancy for President Obama to fill. Scalia figured that as senior adviser to the new president, I might have some influence on the decision — or at least enough to pass along a message.

“I have no illusions that your man will nominate someone who shares my orientation,” said Scalia, then in his 23rd year as the court’s leading and most provocative conservative voice. “But I hope he sends us someone smart.”

A little taken aback that he was engaging me on the subject, I searched for the right answer, and lamely offered one that signaled my slight discomfort with the topic. “I’m sure he will, Justice Scalia.”

He wasn’t done. Leaning forward, as if to share a confidential thought, he tried again.

“Let me put a finer point on it,” the justice said, in a lower, purposeful tone of voice, his eyes fixed on mine. “I hope he sends us Elena Kagan.”

Very classy.

And another liberal Justice writes the best tribute to Scalia:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: ‘We are different, we are one,’ different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

A nice reminder that you can have deep and respectful friendships with people you strongly disagree with.

RIP Antonin Scalia

February 14th, 2016 at 11:20 am by David Farrar

My SA reports:

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

According to a report, Scalia arrived at the ranch on Friday and attended a private party with about 40 people. When he did not appear for breakfast, a person associated with the ranch went to his room and found a body.

I heard Scalia speak in Wellington a few years ago. A razor sharp mind and someone whose impact on legal thinking has been profound.

As sad as the death is for his family and friends personally, the focus will of course be on the politics of a replacement. An Obama nominee would give the liberal wing a 5-4 majority on the court.

For this reason I suspect the Republican majority in the Senate will either not put his nominee to the vote (if they are qualified) or vote them down.

This means that the vacancy will be filled by the next President. If it is Clinton she will get the first liberal majority court in a generation. This makes the election ever higher stakes than normal.

They forgot the Supreme Court building

November 11th, 2015 at 12:00 pm by David Farrar

Stuff has an article and poll on NZ’s ugliest buildings.

The options are:

  • The former Auckland Council building, Greys Ave
  • The Hilton, 147 Quay St, Auckland
  • The Spencer on Byron Hotel, Takapuna
  • The Base Shopping Centre, Hamilton
  • City council building, Palmerston North
  • PMTC Building, Palmerston North
  • The Beehive, Wellington
  • The former Government Life building, Christchurch
  • Civic House, Nelson

But how could they leave off the Supreme Court building?


Photo: John Ansell

After a few weeks of not seeing it I forget how ugly it is, until I view it again.

It is so beautiful inside, but the exterior looks like a Stalinist building with a barbed wire fence.

Chief Justice called for jury duty

April 18th, 2015 at 3:00 pm by David Farrar

CNN reports:

Most Americans often seek ways to avoid jury duty. But one potential juror in Maryland on Wednesday morning had quite the excuse.

Chief Justice John Roberts was seen at a Montgomery County courthouse performing his civic duty as a prospective juror for a car crash case, according to a report first published by The Washington Post.

Although Roberts ultimately was not chosen to serve on a jury, that’s probably just as well, because oral arguments before the Supreme Court are scheduled to last through April 29.

The Post reported that Roberts answered questions regarding his relatives, and told the local court that his sister is a nurse in Indiana and his brother-in-law is with the Indiana State Police.

This could never happen in New Zealand. Lawyers (and judges) can not be jurors. But fascinating that in the US even the Chief Justice could be picked as a juror.

Will the Supreme Court hear the Dotcom appeal?

March 2nd, 2013 at 10:00 am by David Farrar

Stuff reports:

Kim Dotcom’s fight against extradition to the United States looks set to go to the Supreme Court after losing his latest legal battle.

The Court of Appeal has overturned a High Court decision that ordered the disclosure of the documents that are the basis of the case against Dotcom.

The court said extradition hearings were not trials and the full protections and procedures for criminal trials did not apply.

US authorities want to extradite the German-born internet entrepreneur to stand trial on criminal charges alleging copyright piracy and racketeering.

Dotcom’s lawyer, Paul Davison, QC, said his legal team would seek to appeal to the Supreme Court.

The Supreme Court will need to give leave to appeal, as this would be the third appeal. The original ruling was in the District Court.  The first appeal was to the High Court and the second appeal to the Court of Appeal.

The Supreme Court decision

February 27th, 2013 at 3:10 pm by David Farrar

The Supreme Court has unanimously ruled all decisions on the share sales are reviewable for consistency with Treaty obligations.

Not yet clear though if the actions have been deemed legal. More to come.

UPDATE: But it appears they have said the sale will not materially affect Govt’s ability to settle Treaty claims. Hence it looks like the Government can proceed.

Note this is based on tweets from those in court room.

Yes, a number of sources are saying the Maori Council have effectively lost.

The Government will be very relieved.

Supreme Court says no to body snatching

December 19th, 2012 at 10:00 am by David Farrar

Stuff reports:

A Supreme Court ruling in the Takamore body-snatching case looks set to test “uncharted cultural waters”.

The decision, a culmination of five years of legal action between James Takamore’s partner and his whanau, could also lead to a standoff between Tuhoe and authorities.

Mr Takamore died of an aneurism in 2007 and was to be buried in Christchurch, where he had lived with Denise Clarke and his two children for nearly 20 years. But his Tuhoe relatives spirited his body from the funeral parlour to his original birthplace in the Bay of Plenty, where they buried him next to his father at Kutarere Marae, near Opotiki.

Ms Clarke, who is executor of Mr Takamore’s estate, obtained a High Court judgment confirming her right to decide his burial place and ordering an exhumation.

The decision was upheld in the Court of Appeal, but Mr Takamore’s sister, Josephine Takamore, appealed to the Supreme Court against that decision on the grounds that Tuhoe tikanga, or customary protocol, should decide the location of burial.

In a decision published yesterday, Chief Justice Dame Sian Elias said Ms Takamore’s appeal had been unanimously dismissed.

Giving rights to anyone bar the executor would have led to massive uncertainty and encouraged more family disputes to be sorted out by whom can grab the body first. The Supreme Court decision is welcome. Their media summary states:

The Supreme Court has unanimously dismissed Ms Takamore’s appeal. Three Judges of the Supreme Court (Tipping, McGrath and Blanchard JJ) have held that there is a common law rule under which personal representatives have both the right and duty to attend to disposal of the body of a deceased. The rule becomes operative where there is no agreement or acquiescence among the family on what is to be done, where arrangements have broken down, or where nothing is happening. In exercising that power, the personal representative should take account of the views of those close to the deceased, which are known or conveyed to him or her. Any views expressed by the testator on what should be done are an important consideration.

Those three Judges have also decided that under New Zealand’s common law a person who is aggrieved with the decision of the personal representative may challenge it in the High Court. The Court must address the relevant viewpoints and circumstances and decide, making its own assessment and exercising its own judgment, whether an applicant has established that the decision taken was not an appropriate one.

The Chief Justice and William Young J agreed that Ms Takamore’s appeal should be dismissed but would not have recognised the role of personal representatives. On their view, any disputes about what should be done with the body of the deceased can only be resolved by the Court.

I’d make the point that I think the views of the testator should be more than just an important consideration. I think they should be legally binding on the executor so long as they are legally permissible and affordable.

Supreme Court agrees to hear Maori Council appeal

December 18th, 2012 at 11:50 am by David Farrar

Alex Tarrant at interest.co.nz writes:

The fight to stop the government’s asset sales programme is heading to the Supreme Court.

The highest court in the land today granted approval for the Maori Council to appeal a High Court decision a week ago that the government’s decisions regarding moves to partially privatise four state-owned energy companies were not reviewable in court.

The Supreme Court also granted leave for the appeal to be heard by the Supreme Court, meaning the next decision could be the final act in the Maori Council’s bid to prove the sales would be unlawful.

The approved ground of appeal was whether the High Court was right to dismiss the application for review.

The Supreme Court said it would hear the appeal on January 31 and February 1 next year.

It is good that the Supreme Court granted leave to bypass the Court of Appeal. This means that if they do not uphold the appeal, the the partial sales can proceed on time.

Of course it is possible the Supreme Court may uphold the appeal. To do so they would need to find that Justice Young was incorrect both in ruling that the decisions were not reviewable, but also that even if they were none of the grounds cited were substantial.

Cynics might say that regardless of the merits, the Maori Council may start with one vote in their favour. So it could be up to how the other four Justices see it.

The world’s ugliest buildings

May 9th, 2012 at 10:53 am by David Farrar

Stuff has the top ten ugliest buildings in the world.

I’m disappointed the New Zealand Supreme Court building hasn’t been included in the list. It really is appalling, and looks like a 1970s acid relic.

The inside is actually lovely, but the exterior still can induce minor vomiting.

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 Supreme Court, but it will be beneficial at lower courts, and over time may flow through to the Supreme Court.

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.

Supreme Court rejects Field appeal

October 28th, 2011 at 3:00 pm by David Farrar

Labour’s line that Taito Philip Field was only guilty of being a hard working MP trying to help his constituents has had another setback, with the Supreme Court dismissing his appeal. The Herald reports:

The judges said in their finding there must be a “de minimis defence” available for people such as MPs whereby gifts of token value – such as a rugby jersey – were acceptable.

However, the services Field had received were worth about $50,000, and that could not be considered de minimis.

“While we are satisfied that the acceptance of gifts which are de minimis should not be considered corrupt … the acceptance of other benefits in connection with official actions is rightly regarded as corrupt irrespective of whether there was an antecedent promise or bargain,” they said.

“In the present circumstances, given the substantial nature of the benefits, no such defence was tenable.”

The reason I keep banging on about Field is because Labour to this day have never ever said that his behaviour was corrupt. Even after the Ingram Report came out, the party leadership defended him. Even after the verdict their only comment was they acknowledged the verdict. Their actions stood in total contrast to how ACT dealt with Donna Awatere-Huata (whose offending wasn’t even in her capacity as an MP).

But unless Field pops up as a member of a future Workplace Commission, this is probably the last post on him as he should now fade from view.

Justice Wilson resigns

October 21st, 2010 at 10:25 pm by David Farrar

Acting Attorney-General Judith Collins announced:

Acting Attorney-General Judith Collins announced that Justice Wilson today resigned as a judge of the Supreme Court.

This is a good outcome. Personally I’m slightly disappointed that I won’t get to observe and report on a judicial conduct panel, as what is effectively an impeachment trial of a supreme court justice would be a once in a lifetime event.

But the judiciary is spared the spectacle of what would have been a very messy public (effectively) trial, and a very costly one.

The terms on which the Judge has resigned are:

  • His existing entitlements, which include untaken sabbatical leave and retiring leave. The exact amount has not yet been calculated.
  • One year’s salary, of $410,000, which will be taxable.
  • The Crown will pay Justice Wilson’s solicitor-client costs which to date have been calculated at $475,000.

The costs of Justice Wilson must be paid by the Government, by statute – s27(1) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 states:

The Judge’s reasonable costs of representation in respect of the inquiry must be met by the office of the Commissioner.

So that is the law as passed by the last Labour Government.

The one year’s salary will grate with a few people, but the reality is that it saves the taxpayer a lot of money. You see if Justice Wilson did not resign, he would remain getting his salary on full pay – plus all his further legal expenses would also be a debt to the taxpayer. The real loser in this deal is probably Colin Carruthers QC, who has ably represented Justice Wilson!

The High Court said that the JCC had to reconsider whether to recommend a JCP for Justice Wilson. Then after that the Government would have to appoint one all over again. Then there would be scheduling of it, and preliminary arguments, and then effectively the trial itself. Plus the possibility Justice Wilson may seek more judicial reviews.

And finally the JCP would have to come to a decision make a recommendation to Parliament, and Parliament decide whether to remove him.

I think it is impossible that this could occur within six months. It could indeed stretch out to a year.

So during those 6 – 12 months Justice Wilson would be receiving his full salary anyway.

On top of that we would be paying for his legal costs. If he has spent $475,000 so far – before it even gets to trial, I would be surprised if his costs would not come to at least that much again.

Also add on that the JCC was assisted by a former Australian Chief Justice – his costs would be considerable.

The Counsel assisting the JCP was to be a former Australian state solicitor-general – his costs would be in the hundreds of thousands.

And then add on the costs of Crown Law and the Ministry of Justice.

This is a ballpark guestimate, but I would say that if no deal was done to have Justice Wilson resign, then he would have still ended up with close to a year’s salary and the legal costs to the taxpayer would be quite easily a further million dollars or more on top of that.

So I have no problems at all with the agreement negotiated.

And while my sympathy for Justice Wilson is limited as he largely has his own intransigence to blame, it is worth noting he is barred for life from ever appearing in court again as a lawyer. He was formerly a top civil litigator, so his ability to earn money in future is seriously diminished.

It is a sad end to what was a highly regarded career as a lawyer and potentially as a Judge. His lack of full disclosure as a Court of Appeal Judge was IMO not a hanging offence. But his grudging co-operation with his own colleagues on the Supreme Court was what did him in. He embarrassed them, and he he substituted his own opinion as to what he thinks they need to know, for letting them decide that for themselves.

Siemer wins

May 17th, 2010 at 8:39 pm by David Farrar

I blogged on the 2nd of March the Supreme Court hearing of Siemer v Solicitor-General, after being allowed to sit on the media bench to report on it.

I concluded:

  • Siemer will not succeed at being found to have not broken the injunctions
  • Siemer will succeed at having contempt charges with no maximum term of imprisonment deemed to be a criminal matter, which could require in future a jury trial
  • But I do not think he will succeed in getting a new trial

And as it turns out, I was pretty close to the mark. While Siemer was found to have breached injunctions and committed contempt, the Supreme Court upheld his appeal against the six months sentence from the Court of Appeal, and in fact has ruled that no court in NZ can sentence someone to more than three months jail for contempt.

This is quite a significant decision, and does go to show that even “nuisance” litigants like Vince Siemer can end up in doing good, by having the Supreme Court uphold the right under the BORA for no one to face jail of more than three months without a jury trial. Of course Parliament may change BORA n this regard, but until they do it is good to have the courts uphold the law.

Siemer has to surrender himself to the High Court by 4 pm on the 20th of May for a three month sentence unless he complies with the 2005 injunction and provides a written undertaking not to breach it.

What is interesting is that the Supreme Court divided 3-2 on the appeal, with the Chief Justice and Justice McGrath in the minority who voted to decline the appeal. Some extracts from the judgement:

Two further factors indicate that the use of the summary process is fair and not arbitrary, in its impact on litigants, in a way that a jury trial would not be. First, in most cases of contempt there will be little dispute concerning the underlying facts, determination of which is the primary function of the jury. The main issue will usually be rather whether the facts amount to contempt, on which a direction as to the law would be given to the jury if the procedure of a jury trial were to apply. Secondly, referring to the present context, most contempt cases involving breach of court orders are brought by private litigants. It would add greatly to cost, time, delay, expense and complexity of litigation if litigants had to enforce rights already obtained through court proceedings. This is so whether or not the proceedings were brought by a public official such as the Solicitor-General. For a party to have to go through court proceedings to enforce rights it had already obtained from a judgment of the court would be grossly unfair and seriously undermine public confidence in the rule of law.

This is a pretty key point. It would be very unfair for litigants if after having already had certain rights established, they could only get them enforced by recourse to a jury trial. This is why the Chief Justice concluded:

It is true that the summary process under the common law makes a jury trial for common law contempt impossible …

The common law summary procedure remains the only means yet identified which enables effective protection to be given to the threats to the rule of law that all contempts provide. The unusual nature of the procedure emphasises the gravity of the threat to the administration of justice and in the eyes of the court. The procedure also adequately protects persons who come before the court. For all these reasons we consider the constitutional importance of the objective of the summary process and the impact that accommodating a jury trial would have on the courts’ ability to ensure the effective administration of justice clearly indicate that the procedure is a proportionate response to the needs of the rule of law.

Hence the Court agreed that a jury trial for contempt is just a no go. For what it is worth, I agree.

They then disagreed on how to weigh that decision up against BORA which said you need a jury trial for offences which carry a sentence of more than three months.

The CJ and McGrath J concluded:

It follows that we consider the summary procedure for all contempt of court proceedings is a justified limitation of the right to a jury trial under s 24(e). The summary procedure accordingly is not in breach of the Bill of Rights Act.

But the majority disagreed. They concluded:

We have accordingly been brought to the view that as a necessary consequence of the enactment of s 24(e) the power of a New Zealand court to impose a sentence of imprisonment for contempt has been limited to imprisonment for no more than three months (and/or a fine).

It will be interesting what happens if Parliament changes 24(e) so that jury trials are only needed for possible sentences of greater than two years. If so, I presume that will become the maximum punishment for contempt automatically.

It will be interesting to see if Vince Siemer complies with the injunction before Thursday, or if he chooses to go to jail.

The decision may also be a relief to Whale Oil. He is currently only facing charges for breaches of name suppression (which is a fine only). However if he continues to (allegedly) breach orders, it is possible he may get charged with contempt at some stage. If he is, at least he will have the comfort of knowing his possible stay at Mt Eden is a maximum of three months!

Supreme Court Justice faces Judicial Conduct Panel

May 7th, 2010 at 1:24 pm by David Farrar

The Herald reports:

The Judicial Conduct Commissioner says there should be further investigation into the conduct of Supreme Court judge Justice Bill Wilson in the long running Saxmere wool case.

The commissioner, Sir David Gascoigne, has received three complaints about Justice Wilson’s conduct in the Saxmere wool case.

Today he said there was no basis for dismissing the case.

However, he said he was unable to take the matter any further in a preliminary examination, and recommended a Judicial Conduct Panel examine the issue.

The recommendation would go to the Attorney-General.

Justice Wilson, in a statement released shortly after the commissioner’s, said he intended to speak with the Chief Justice early next week.

I have no doubt the Acting Attorney-General (Judith Collins acts on this issue) will agree to set up a judicial conduct panel.

I think the time has come for Justice Wilson to resign and return to practising as a lawyer. The Judicial Conduct Panel would probably hear most evidence in public, and would be effectively a trial of the Judge. That would be a very painful process to go through for him. His comments about talking to the Chief Justice indicate he must be seriously considering this.

Siemer v Solicitor-General

March 2nd, 2010 at 10:15 am by David Farrar

Proceedings have just started in the Supreme Court with the full bench of five Justices, and I am live blogging from the media bench.

Robert Lithgow is appearing pro bono for Vincent Siemer in seeking leave to appeal appealing a decision of the Court of Appeal.

Siemer has had a long standing feud with receiver Michael Stiassny and various items on a website he ran have been ordered to be removed. Siemer was prosecuted by the Solicitor-General for refusing to do as contempt of court, and was sentenced to jail for a finite period.

The issue is that as the Solicitor-General did not seek a term of less than three months, then should Siemer have been entitled to a trial by jury under the NZ Bill of Rights Act 1990.

A major aspect of this is whether or not use of contempt of court is a criminal process or civil process.

Chief Justice Elias is interjecting quite frequently.

Lithgow is arguing that rather than have the Court of Appeal reduce the term of imprisonment, they should have quashed the conviction for contempt and ordered a jury trial.

Finally another Justice has interjected. Not sure of his name, but the Justice sitting on the far right (from my view).

CJ Elias has interjected around a dozen times, which may be seen as scepticism, but she has also commented she is favourable to one of the arguments.

An interesting discussion on what will happen is Siemer does get his jury trial, and whether he will argue that the injunctions should not have been issued, rather than the he did ot breach them.

Lithgow concedes his client is most likely to want to argue the injunctions should not have been issued, but that this is not relevant as the court will control the trial, and can rule on what is allowed.

The Registrar has kindly given me a seating plan for the Justices, so I can now identify that Justice Anderson was the Judge referred to above. Justice Blanchard has questioned Lithgow considerably also.

It is tempting to try and conclude that the level of questioning means a Judge is hostile to the argument, but this is not necessarily the case. What I will find interesting is to contrast how the Crown Law arguments are treated.

Back now after the morning tea break. Focusing on a 1908 English case on contempt. Only other media here are Law Journal editor Bernard Robertson and NBR’s Rob Hosking.

The discussion is how to assemble a jury where there has been no criminal indictment.

The Court of Appeal has already found that the contempt process was essentially a criminal matter (unlike the High Court), but did not grant a jury trial, and instead reduced the sentence so no trial was necessary. Lithgow says main point is he received a criminal sentence originally.

If the original conviction/order is quashed, then the Solicitor-General could seek a new trial, and seek a punishment of less than three months. However it is debatable whether the SG not seeking a longer sentence means that this is binding on the court, and hence even in that circumstance could still require a jury trial.

Lithgow is arguing that a jury can be trusted to deal with a matter of contempt, as the contempt laws exist for the sake of citizens.

CJ Elias is trying to move Lithgow on, saying that if there is a right, there is a right, regardless of whether or not one thinks it is suitable for a jury.

The debate has now moved to whether or not Siemer had complied with the injunction as he did remove some material from his website. Lithgow argues there was no way to know exactly what material needed to be removed.

Justice Anderson makes the point that Siemer could have applied to the High Court to get the injunction clarified. CJ Elias says the SC will not give an advisory opinion during the hearing on the injunction. She also says that the injunction does not require the entire website to be taken down – just material that breaches the injunction.

My feeling is that Siemer is unlikely to prevail on the issue of asserting he did not breach the injunction. But on the wider issue of the right to a jury trial, still very hard to read until one hears the Crown Law arguments.

Justice Blanchard has said the terms of the injunction are not complicated. Lithgow argues what remains on the website is merely a few splinters, and how far does one go in removing material, when the vast majority has been removed.

Madeleine Laracy has just started speaking for the Solicitor-General. Says that requiring jury trials to enforce contempt breaches would lead to many

more people ignoring court orders, so they can take their chances pleading before a jury. Is now quoting my favourite Justice Scalia on how contempt is just enforcing a civil process.

Justice Anderson has asked if there is any other civil proceeding that can lead to imprisonment, now that they no longer jail for debts. Laracy responds that prison can be avoided my complying with the court orders, and is essentially a choice for Siemer.

The Assistant Crown Counsel is Briar Charmley. So far the “off-siders” have not got to speak.

Just back from the lunch break. My views of the exterior remain unchanged. Up close it is even worse. The rails look dusty, and it really belongs in a 1950s Soviet museum. However the inside is quite different. What I most like is that the court room itself is just inside from the main door, so it is really easy to access it. And the interior of the court room is lovely. I’d take a photo of it, except I didn’t apply in advance for permission – may do so next time.

Justice McGrath is asking why there should be a distinction between civil and criminal contempt. Laracy says criminal law’s aim is to punish, and civil law’s aim is to coerce to comply and is not unconditional and can be mitigated or averted by compliance.

McGrath responds that the distinction is academic because at the end of the day it is still jail. Laracy says it may only be jail if they do not comply. Quite amusing to see a former Solicitor-General cross swords with Crown Law.

Justice Wilson has also said he finds the distinction artificial.

Overall Crown Law is getting reasonably battered on the civil vs criminal argument.

Laracy says no case in NZ history has had contempt dealt with as an indictable criminal offence, and referring to the Nash case.

Have to head off now. Very dangerous to make predictions on a case when you have not read all the material, but my impressions are:

  • Siemer will not succeed at being found to have not broken the injunctions
  • Siemer will succeed at having contempt charges with no maximum term of imprisonment deemed to be a criminal matter, which could require in future a jury trial
  • But I do not think he will succeed in getting a new trial

I may be wrong on everything though 🙂

I also think at some stage the Government may amend the law so that an offence of contempt with a maximum three month imprisonment term is made available as a judicial option. This would be a sensible measure so there is something less draconian that possible indefinite imprisonment.

An instant focus group

January 26th, 2010 at 9:50 pm by David Farrar

I was on the bus today, and across the aisle were half a dozen girls. They were chatting about the usual girlie things until the bus pulled up to the Supreme Court building. One of them suddenly exclaimed how hideous (yes that exact word) it was, and they all agreed.

Then other passengers on the bus joined in, also saying how awful it was, that it was repulsive art etc etc. It was an instant focus group, responding to the ugliness on display. And they were of course right – it looks even uglier every time you look at it.

A reader points out to me, that it is not just Labour that has a fabn of the design in its ranks. Wayne Mapp in his newsletter said:

On Monday I attended the wreath laying by Prince William in honour of our fallen at the National War Memorial in Wellington. Afterwards Denese and I went to the opening of the new Supreme Court building.

The architecture of the building is certainly bold especially with the new Court contained within an orb, modelled on a Kauri Cone. The building makes a statement and I believe New Zealand, can do with more buildings with such a strong design focus.

The only thing NZ should do with buildings with such a strong design focus is use them as target practice for the SAS.

I do hope Wayne isn’t in charge of designing any of the ships for the Navy, with his comments above!

Thinking about the Supreme Court building, it does occur to me that it might be less hideous if one got rid of the barbed wire exterior. Possibly the building itself is not beyond redemption if you scrap the wrap-around.

US Supreme Court strikes down electoral spending restrictions

January 22nd, 2010 at 5:00 pm by David Farrar

The US Supreme Court has struck down part of the law which restricts private organisations from spending their money on election campaigns.

Cnet explains why:

The U.S. Supreme Court’s sweeping ruling on Thursday that invalidated large chunks of campaign finance law arose in part from an unlikely source: the emergence of Facebook, YouTube, and blogs, and the decline of traditional media outlets.

A 5-4 majority concluded that technological changes have chipped away at the justification for a law that allows individuals to create a blog with opinions about a political candidate–but threatens the ACLU, the National Rifle Association, a labor union, or a corporation with felony charges if they do the same.

The now-invalidated law “would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were created with corporate funds,” Justice Anthony Kennedy wrote in the majority opinion (PDF). “The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”

In NZ we don’t have a court that can strike down laws that breach the Bill of Rights. To get rid of the Electoral Finance Act, we had to sack the Government.

The court pointed out that the now-invalidated laws are more sweeping than the term “campaign finance” might imply–and amount to simple censorship. It listed these acts of political speech that previously would have been criminalized: the Sierra Club running an ad (close to the time of an election) disapproving of a congressman who favors logging in national forests; the NRA publishing a book urging a vote against an incumbent U.S. senator who supports a handgun ban; and the American Civil Liberties Union creating a Web site telling the public to vote for a presidential candidate because of that candidate’s defense of free speech.

This law was even worse than the EFA!

Joel Gora, a professor at Brooklyn Law School and ACLU lawyer who argued a landmark 1976 Supreme Court case, wrote at The New York Times’ Web site today that the justices “dismantled the First Amendment ‘caste system’ in election speech. Before today, the right to speak depended on who was doing the speaking: business corporations, no, unless they were media corporations; nonprofit corporations, maybe, depending on where they got their funding; labor unions, no.”

What happened of course was these groups formed PACs instead, and just donated to the PACs.

The left in the US are calling this an awful decision. This is ironic as the Obama campaign was the highest spending of all time – the first oen to turn down federal funding and an associated cap. They are not against big money in politics – just against other people’s big money!


January 20th, 2010 at 8:11 pm by David Farrar

I saw the finished Supreme Court building for the first time today. I’d been out of Wellington for a couple of weeks, and since being back hadn’t had occasion to going past it.

Now I had heard some pretty uncomplimentary things about it, so I wasn’t expecting to be impressed. I thought it would be maybe like Te Papa – bland and uninspiring.

But it is far worse than that. It is truly hideous. I don’t think I have seen a building before with no redeeming features. The exterior up top looks like barbed wire from a distance. The windows are dull. The pillars add nothing, and it is again just hideous.

In case I have not made myself clear, I do not think you could design a more hideous building if you actually tried to. If there was some global competition for hideous buildings, then the Supreme Court building would be a finalist beyond doubt.

The monstrosity surrounding the building is meant to be “a bronze screen depicting the strength, durability and stature of the pohutukawa and rata tree”. Only if you have taken P recently.

It is such a pity. I visited the Israeli Supreme Court and they have a magnificent building.

So I wondered what moron approved the design of this hideous beast, let alone $80 million of our money on constructing it.

What did Rick say at the time about the design:

“This is a building of great significance to New Zealand as it will serve our country for at least 100 years. The design incorporates the old and the new. Once constructed the Supreme Court will be an architectural legacy,” Rick Barker said.

I hope it doesn’t last 100 years. If we are lucky an earthquake will strike Wellington and destroy it. And the only architectural legacy it will leave behind is to teach design students what not to do in the future.

UPDATE: Oh my God. Rick Barker put out a press release this week boasting about how great the building is:

The new Supreme Court sitting alongside the refurbished Old High Court is a fine blend of the old and new, the Yin and Yang, says Labour Courts spokesperson Rick Barker.

“Each is an outstanding piece of architecture reflecting the different times in which they were designed and built. The architects have delivered a great refurbishment and a new building that will stand the test of time.”

The man’s mad. How can anyone look at that building and call it an outstanding piece of architecture.

Commenting on today’s opening of the new Supreme Court building by Prince William, Rick Barker said the original drafts he received when Minister for Courts were for a plain building.

Which would have been fine.

“But I wanted to see a new Supreme Court that personified the special place which our Supreme Court is and should be. I was prompted in this by travels in the United States where each town and city had two special buildings, City Hall and the local court house. They represented a clear statement of the value that the community placed on civic responsibility and the administration of justice.

“My brief was for a building that would stand the test of time as we are unlikely to build another in the next 100 years. It should be a reflection of the architecture expected at the beginning of the 21st century,” Rick Barker said.

Barker is actually taking personal credit for the hideous monstrosity. That’s like taking personal credit for shitting in the Harbour.

“It was to be a special place and a statement of the value our community placed on the administration of justice, with a courtroom that befitted the highest court in the country. I wanted a building of which a future generation would say — they did a fine job.

Future generations will wonder if the building was some sort of expensive practical joke. None of them will say they did a fine job.

Justice Wilson

December 2nd, 2009 at 3:40 pm by David Farrar

The Attorney-General has announced:

Attorney-General Christopher Finlayson said he had confirmed today that the Judicial Conduct Commissioner has received a complaint relating to Justice  Wilson’s failure to recuse himself from a Court of Appeal case despite the nature and extent of his financial relationship with counsel in the case. …

“The matter is now with the Judicial Conduct Commissioner,” Mr Finlayson said. “The law requires that the Commissioner makes a preliminary examination, during which he may make any enquiries and look at any relevant court documents.”

“At the end of the preliminary examination, the Commissioner must either dismiss the complaint, or refer the complaint to the Chief Justice, or recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter concerning the conduct of the Judge.”

This is no minor thing, as Justice Wilson sits on the Supreme Court.

The Press editorial also touches on him:

The Supreme Court’s decision last week to recall a decision it made earlier this year, and direct a new hearing of an important case because of concerns about the risk of the appearance of bias by one of its own judges, is unprecedented in New Zealand.

Which does show the system works.

It not only raises doubts about the judgment of the judge involved but it also re-ignites debate made at the time the Supreme Court was established about whether, with judges drawn entirely from New Zealand’s small legal talent pool, such problems are unavoidable. There is little question that, at the least, the episode is a serious embarrassment for the Supreme Court. …

At the time, the judge was a new appointee on the Court of Appeal. He was soon afterwards elevated to the Supreme Court, after an extremely short time on the Appeal Court and ahead of other more experienced and more intellectually distinguished Appeal Court judges. This lapse inevitably raises a question about whether he has sufficient sensitivity of judgment to entitle him to sit on the country’s highest court.

I will be interested to see the report of the Judicial Conduct Commissioner.