No announcement yet.

Supreme Court decision by default


  • Supreme Court decision by default

    Click image for larger version

Name:	supreme-court-judges.jpg
Views:	1
Size:	30.9 KB
ID:	25059

    A recent Supreme Court of New Zealand decision split 2 -2 between four sitting members of the Bench has upheld a Court of Appeal ruling resulting in a decision by default.
    Sir Terence Arnold was not available due to illness and the Court said there was insufficient time to arrange a replacement.

    While in accordance with legislation, the effect "remains frustrating from an appellant's perspective," counsel for the appellant David Chisholm QC says.

    When the case of John Gilbert and QSM Trustees Limited (in receivership and in liquidation) v Body Corporate 162791 (SC 59/2015) [2016] NZSC 61 was heard by the Supreme Court, only four judges were able to sit, Mr Chisholm says.

    "The matter is quite simple. We turned up on the day of the hearing. When the Judges came out, there were only four Judges, not five.

    "Elias CJ confirmed that Arnold J was ill and/or unable able to sit (or words to that effect).

    "Her Honour accordingly confirmed that the Court would sit with only four Judges," he says.

    As it happens, the four judges were unable to agree on the outcome of the appeal and the result, according to a media release by the Supreme Court, "was an even division of the court".

    Justices William Young and Glazebrook would have dismissed the appeal, while Chief Justice Elias and Justice O'Regan would have allowed the appeal.

    In accordance with s 31(2) of the Supreme Court Act 2003, the Court of Appeal decision that which was under appeal was affirmed.

    Supreme Court Registrar Kieron McCarron has confirmed that Justice Arnold was unable to sit due to illness.

    "There was insufficient time to arrange for an Acting Judge to sit," he says.

    "As noted in the Media Release for the Judgment, because four Judges heard this appeal and the result was an even division of the Court, s 31(2) provides that the decision of the Court appealed from is affirmed.

    "An equivalent provision operates in respect of the Court of Appeal: see s 59 of the Judicature Act 1908and Deynzer v Campbell [1950] NZLR 790 (CA).

    "There are equivalent statutory provisions and similar practices are followed in courts overseas; see for instance the High Court of Australia's decision in Gould v Brown (1998) 193 CLR 346."

    Mr McCarron says "appointment of acting judges (of which there are 3 appointed ie. Blanchard, Tipping and McGrath JJ) is also governed by the Supreme Court Act (s23) and in terms of this provision are authorised to sit in specific cases by the Chief Justice if the need arises."

    He said he was unsure whether the Gilbert appeal was the first application of s 31(2).

    Mr Chisholm says there is "concern that the illness of a Judge can potentially impinge upon the substantive rights of an appellant".

    "It seems unsatisfactory that the court did not explain the circumstances that required it to sit as a four-judge panel," said constitutional law lecturer Professor Philip Joseph, of the University of Canterbury, after reading the Supreme Court's decision.

    "The usual recourse is to appoint an Acting Judge to sit," he says.

    "The court still had the option of adjourning the hearing but decided to push ahead instead.

    "I suppose counsel were in Wellington and ready to argue the case, so the court thought that it should really proceed to hear the matter rather than adjourn.

    "Damned if you do and damned if you don't!"

    Credit: James Greenland NZLS
    Attached Files
      Posting comments is disabled.

    Latest Articles


    • Judge Goddard refuses to answer MPs' questions
      by admin
      The former New Zealand judge who headed a UK inquiry into child sexual abuse has said she will not appear before British MPs to answer questions about her time in charge. Dame Lowell Goddard said for her to be summoned would compromise the inquiry's "independence and integrity". She also hit out at "malicious, defamatory attacks" by the British media and said she was disappointed the government had not defended her. British MPs have asked the former head of the child sex abuse inquiry to expl...
      11-11-2016, 11:47 AM
    • Judge Lowell Goddard's epic fail
      by admin
      Dame Lowell Goddard, the New Zealand judge who resigned last week as chair of the 100 million (N$183.5m) Independent Inquiry into Child Sexual Abuse (IICSA), did not leave her post voluntarily but was effectively fired. Dame Lowell, appointed by then-Home Secretary Theresa May just over a year ago, had already lost the confidence of senior staff and members of the inquiry panel, according to two well-placed legal sources. The Home Office has denied she was sacked, according to reports. After she ...
      09-08-2016, 10:07 AM
    • Sir Ngatata Love's lawyer claims agreement had no impact on Trust
      by admin
      Sir Ngatata Love's lawyer Colin Carruthers QC says the Serious Fraud Office (SFO) theory against his client is wrong, with a key agreement placing no financial cost on the Wellington Tenths Trust. The former leading Treaty of Waitangi negotiator and academic is on trial in the High Court at Wellington, accused of obtaining funds by deception, or alternatively of obtaining a secret commission.The charges relate to allegations that Love showed favour to Auckland property developer Redwood, and ...
      05-08-2016, 01:44 PM
    • Transport boss pleads guilty to corruption charges
      by admin
      The Serious Fraud Office says the guilty plea yesterday by an Auckland Council manager to corruption charges shows the dangers in not questioning a culture of gratuities. Barrie Kenneth James George, 69, this morning at the High Court at Auckland pleaded guilty to two charges of accepting bribes as a public official when he took gifts worth $103,580 between 2005 and 2012. The gifts included cash, and lavish overseas holidays for George and his family. SFO Director, Julie Read welcomed the guilty plea...
      04-08-2016, 09:40 AM
    • Identities of corrupt JP's stay secret
      by admin
      The identities of Justices of the Peace disciplined for incompetence, making false allegations or misusing their title for personal gain are being kept secret by the Ministry of Justice.In the case of the above JP Denis Selwyn Callesen of Keri Keri, the Crown Law Office even halted a private prosecution against Mr Callessen after evidence emerged that Mr Callessen and his former secretary Robin Morris had perverted the course of justice.

      The Ministry believes the privacy of...
      23-07-2016, 11:35 AM
    • Government funded escape artist Philip Smith found guilty
      by admin
      The murderer who embarrassed New Zealand law and border authorities by flying to Brazil while on temporary release from prison has been convicted for the audacious escape. Charges of escaping lawful custody and making a false statement to renew a passport have been added to Phillip John Smith's lengthy criminal record, along with murder, child sex abuse, kidnapping, tax fraud and arson. In an unusual legal procedure, a jury was chosen at the Auckland District Court today and the judge immedia...
      22-07-2016, 01:05 PM