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MURKY NZ SUPREME COURT PRACTICES INCREASING CONCERNS

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  • MURKY NZ SUPREME COURT PRACTICES INCREASING CONCERNS


    Secret judgments, misrepresenting grounds of appeal and inability to access Supreme Court filings are behind a proliferation of complaints to the Office of Judicial Conduct Commissioner and formal claims within the New Zealand Courts.

    And all this seems to be going on unnoticed by the legal community generally in New Zealand.

    While annual complaints to the Office of the Judicial Conduct Commissioner through year-end July 2014 were down 10%, complaints against Supreme Court judges were up 100%, to 67 from 34 the previous year.

    At least four of the twenty-three leave dismissals by the Supreme Court in the past two months concerned alleged breaches by Supreme Court Judges or their Registrar. The actual number is likely to be more given the Court’s manner of reporting.

    More obvious are dismissals of appeals against High Court strike outs of judicial review challenges to the Supreme Court Registrar not publicly recording rulings which dismiss applications to the Supreme Court and a general prohibition against public access to Supreme Court applications.

    Less obvious are cases such as Crequer v Ministry of Social Development [2014] NZSC 119 where an appeal against an unlawful Court of Appeal costs order in favour of the Crown against an appellant seeking an extension of time was represented by the Supreme Court as an interlocutory issue before the High Court, thereby exempted from the Supreme Court’s jurisdiction under section 13(4) of the Supreme Court Act 2003.

    The Supreme Court reasoned, “Because the appropriateness or otherwise of the present form of the case can be addressed at the substantive hearing of the appeal, it is not necessary in the interests of justice for this Court to hear the proposed appeal before the High Court determines the appeal from the Social Security Appeal Authority.” But it was the last line of the Court’s refusal in Crequer which provided Sherlock’s clue, “The (Crown) has indicated that it will not seek to enforce the award of costs made by the Court of Appeal and does not seek costs in respect of the current application”.

    When Ms Crequer sought recall on the ground the Supreme Court evaded her true appeal ground being a challenge to the lawfulness of the Court of Appeal costs order, her application was dismissed by general email from the Registry which claimed legal privilege at the bottom.

    A read through many of the published leave judgments indicates the cursory manner in which the Supreme Court routinely dismisses applications with two page judgments is accompanied by common, almost template, wording along the line “We are satisfied that it not necessary in the interests of justice that we hear and determine the appeal. We do not consider that any issue of general or public importance is raised, nor do we accept that there is any risk of a substantial miscarriage of justice.” But then this, according to section 16(2) of the Supreme Court Act 2003, is acceptable practice: “Court to state reasons for refusal to give leave…(2) The reasons may be stated briefly, and may be stated in general terms only.”

    An increasing minority are expressing the view that the Supreme Court has acted in violation of the legislated purpose for its creation, defined as “to improve access to justice” in section 3 of the Supreme Court Act 2003 “. For evidence in support of this perspective, one needs not look far. In a leave dismissal this week (Cruickshank v the Crown [2015] NZSC 32), the Supreme Court refused leave to appeal against conviction and sentence on a stealthy technicality. The Supreme Court accepted the Crown argument that the Appellant could not appeal against conviction and sentence because the appeal did not exist at the Court of Appeal due to that Court of Appeal’s refusal to grant the necessary extension of time.

    The Supreme Court then ruled “It is not necessary that we determine the jurisdictional point” because the Court of Appeal had not made a ruling on appeal against conviction and sentence and the Appellant had not sought an appeal against their refusal of an extension of time.

    This appeared disingenuous. The Court of Appeal had ruled Mr Cruikshank’s appeal was “without merit” as its “reason” for refusing the extension of time. It is reasonably obvious the Supreme Court was averse to properly dealing with a full bench of the New Zealand Court of Appeal predetermining the merits of an appeal without benefit of considering arguments on the merits. Moreover, it is this ‘when did you stop beating your wife’ reasoning the New Zealand appellate courts use frequently. In the leave application to the Supreme Court, Mr Cruickshank was expected to confine his appeal to the extension of time and live with the stigma of three of New Zealand’s most senior judges on the highest appellate court by right already branding his appeal as pointless. As a public judgment of high authority it would be undoubtedly relied upon to support any subsequent appeal dismissal by the Court of Appeal of his merits if the Supreme Court focused only on the extension of time and - lightening striking - actually granted it. All of this in breach of the most fundamental principles of natural justice.
    Attached Files

    • John "Brockovich"
      #1
      John "Brockovich" commented
      Editing a comment
      COURTWATCHER: I agree; the Supreme Court always breaches natural justice, and the law, in refusing to correct the Court of Appeal, when such correction will expose corruption in our judicial system. The following is another example from April 2012:

      Justice Andrews stuck out a Judicial Review of the Judicial Conduct Commissioner’s decision not to hold Justice Heath to account for his miss-conduct.

      An appeal was filed in time, however in error excluding the fee payment. Instead of contacting the applicant the Registrar simply returned the application a week later, making any refiling out of time. Leave was applied for to file a late appeal.

      The Court of Appeal accepted the application on the basis that the “length of the delay is not of concern”. However, it refused to hear the appeal as it considered the “proposed appeal lacks any merit and has no prospect of success” and “There is no point in granting an extension of time to bring a hopeless appeal. We therefore dismiss the application for an extension of time within which to appeal.”

      Justice Tipping of the Supreme Court agreed with the Supreme Court Registrar’s decision that “there is no right of appeal in that the decision is a refusal to give leave to appeal to the Court of Appeal”

      That judicial miss-conduct simply blocks exposure of miss-conduct by Justice Heath and the JCC, as the appeal to the Supreme Court was on the Court of Appeal decision that the appeal to them “lacks any merit”.

      Truth is irrelevant to the Judges of Supreme Court in these situations.
      Last edited by John "Brockovich"; 05-04-2015, 10:54 AM.

    • Sir Richard
      #2
      Sir Richard commented
      Editing a comment
      Why are we not hearing about these scoundrels in the mainstream press! If this kind of corruption were happening in Parliament, we would have commentators covering it, possibly by the hour.

    • Q. C.
      #3
      Q. C. commented
      Editing a comment
      Originally posted by Sir Richard
      Why are we not hearing about these scoundrels in the mainstream press!...
      That would take investigative journalism and no fear. Therefore, it will not happen until there is a tipping point.
    Posting comments is disabled.

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