Court of Appeal Violates the Law and Supreme Court Does Nothing to Remedy It

The Supreme Court of New Zealand refused to hear an appeal that alleged an improper assignment in the Court of Appeal, despite the Supreme Court’s earlier observation that judges are not entitled to pick and choose their cases.

FOR IMMEDIATE RELEASE – On 27 February 2015, the Supreme Court of New Zealand, the country’s highest court, delivered a landmark Judgment1 dismissing several applications brought by Mr N, whose name is suppressed.

In the Supreme Court, Mr N sought to challenge the dismissal of his civil appeal2 by the panel of Justices Rhys Harrison, Mark Cooper and Lowell Goddard. Mr N alleged that Harrison J inappropriately assigned the appeal to himself3 in breach of both the Judicature Act4 and indeed the Court of Appeal’s own publicized processes5. The improper assignment was also in breach of the fundamental rule against bias, succinctly cited by the Supreme Court in the infamous Saxmere v Wool Board6 decision as “Judges are not entitled to pick and choose their cases”.

The Supreme Court, having refused to hear Mr N’s proposed appeal, incredibly ignored the legal test it should have applied, whether there was “substantial miscarriage of justice [that] may have occurred”7. Neither Courts’ Judgments mention either the undisputable fact of the improper assignment by Harrison J nor the rules of law Mr N relied upon in his arguments.

Mr N’s new counsel, Dr Frank Deliu, comments “it is one thing for the Court of Appeal to disregard its organic law and Gazette procedures, but it is another entirely for the Supreme Court to just ignore the issue. It leaves a very bad impression and it could unfortunately be perceived as a whitewash. The New Zealand judicial system was gravely chastised by the Privy Council in Taito v R for systematic breaches of fundamental human rights and so our Courts need to be extra diligent to avoid even the perception of impropriety in light of that international embarrassment. The common misconception is that with the abolition of appeals to the Privy Council that there is no longer any international, i.e., independent, recourse but that is not true as people can petition to the United Nations Human Rights Committee for redress and a number indeed have succeeded”.

According to Mr N, “judicial decisions omitting entirely both relevant facts and law raise concerns as to whether the Supreme Court of New Zealand is an adequate replacement of the Privy Council as the nation’s highest appellate court”. Mr N declined to comment on his next step, saying “I need to exhaust local remedies before I can take my case to the UN”.

Justice Lowell Goddard, who was another judicial officer on the panel of the Court of Appeal that failed to properly address the allegations of Harrison J’s improper assignment, was recently nominated as the head of the inquiry into historic child abuse cases in the United Kingdom. The high-profile inquiry concerns public officials, cover-ups and suppression of whistleblowers. Mr N says “we should clean up our own backyards before trying to export our judiciary to countries with far more robust legal systems”.

Copies of the court documents can be found at www.fairhearing.info.

Contact (media only): Dr Frank Deliu, Justitia Chambers, +64 21 178 3993, fdeliu@justitiachambers.co.nz.

1. [2015] NZSC 15
2. [2014] NZCA 526
3. Directions of Harrison, 9 July 2014
4. Judicature Act 1908 § 58C Assignment of Judges to divisions
5. Procedures Adopted by the Court of Appeal of New Zealand at ¶ 1.6
6. [2009] NZSC 72 at ¶ [8]: “Judges are not entitled to pick and choose their cases, which are randomly allocated.”
7. [2002] NZPC 4: New Zealand’s highest Court had a “fundamentally flawed and unlawful system” at ¶ [22], “contrary to fundamental conceptions of fairness and justice” at ¶ [21] and “decisions that the appeals were in truth unmeritorious could only be made after observance of procedural due process. Unfortunately, the system failed this basic test” at ¶ [20].

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