The Watchdog

Keeping citizens in the loop

NBR:’ Govt ministers will make final call on Westpac contract’

Govt ministers will make final call on Westpac contract –

Key Government ministers and not Treasury will make the final call on any changes to the Crown’s banking contract, Prime Minister John Key has indicated.

The acknowledgment comes after the Green Party last week raised questions over ministers and their staff receiving corporate hospitality from Westpac, which has held the government’s banking contract since 1989.

Nine ministers confirmed they had accepted hospitality from Westpac in the past year, including box seats at the rugby sevens, while 13 said their staff had accepted similar offers.

Mr Key last week said the Greens did not have any legitimate concerns and the Government had now opened up the contract to competition.

He told reporters Treasury would make the final decision, but today said that decision would be based on advice from the Ministry of Economic Development.

“That recommendation will go to ministers, who are likely to base their decision on the recommendation,” he told Parliament today.

Green Party co-leader Russel Norman questioned Mr Key on whether the public should be concerned about ministers receiving corporate hospitality from Westpac, which included Rugby Sevens and rock concert tickets, plus restaurant meals.

Mr Key said he did not like the implication because it was “without foundation”.

“There are well set out guidelines in the Cabinet guidelines.

There is also a pecuniary interests list. The member is simply making accusations to get on the front page of the paper,” he said.

Mr Norman later said in a statement that the Government needed to be clear about whether ministers who received hospitality from Westpac would be signing off the final decision.

“The public also deserve transparency around the amount of hospitality and free gifts corporates give to ministers and their staff,” he said.

Westpac last week said invitations from its corporate hospitality programme were extended to “a broad range of key stakeholders, including members of both sides of the House, without prejudice or expectation”. More by NZPA and NBR staff


Comments and questions

3 Unfortunately, the Government probably has no choice but to continue to use Westpac as their banker at present. However, the real question is: will the Government allow the fledgling NZ banking industry to develop its skills and capacity in business banking so that it may one day take over some of this work? Anonymous | Tuesday, June 7, 2011 –


6:47pm reply The government has every choice to move their business to Kiwibank. While no doubt Westpac will be sharp on price, it will contact a profit component in their bid. That profit exits the country in the form of dividends to the parent bank.

Now with Kiwibank, the profits will stay in the country of origin and get recirculated locally. The multiplier effect (elementary economics) of this means Kiwibank can afford to bid lower, and NZ inc would still be better off. I would have thought the choice was obvious.

Perhaps Kiwirail should have thought about this before awarding big contracts to overseas comapnies!! Richard S | Tuesday, June 7, 2011 – 7:38pm


reply “Mr Key last week said the Greens did not have any legitimate concerns and the Government had now opened up the contract to competition.

He told reporters Treasury would make the final decision, but today said that decision would be based on advice from the Ministry of Economic Development.

“That recommendation will go to ministers, who are likely to base their decision on the recommendation,” he told Parliament today.

Green Party co-leader Russel Norman questioned Mr Key on whether the public should be concerned about ministers receiving corporate hospitality from Westpac, which included Rugby Sevens and rock concert tickets, plus restaurant meals.

Mr Key said he did not like the implication because it was “without foundation”.

“There are well set out guidelines in the Cabinet guidelines. There is also a pecuniary interests list. The member is simply making accusations to get on the front page of the paper,” he said.

Mr Norman later said in a statement that the Government needed to be clear about whether ministers who received hospitality from Westpac would be signing off the final decision.

“The public also deserve transparency around the amount of hospitality and free gifts corporates give to ministers and their staff,” he said.’ __________________________________________________________________


I agree with Russel Norman, and look forward to the Green Party (preferably ALL parties) supporting legislative changes to ensure the following:

A NZ ‘Register of Lobbyists’ and ‘Code of Conduct for Lobbyists’ – as required by most Australian States and Commonwealth Governments:

An enforceable ‘Code of Conduct’ for New Zealand MPs .

How is it that NZ is ‘perceived’ to be the least corrupt country in the world’ (along with Denmark and Singapore according to Transparency International’s 2010 ‘Corruption Perception Index’) – when we lack transparency and accountability in such critical areas?


AUSTRALIAN OVERVIEW: Summary of codes of conduct in Australian parliament, including a comparison with NZ __________________________________


Australian Commonwealth Government

In 2008 the Australian Government introduced a Lobbying Code of Conduct and established a Register of Lobbyists to ensure that contact between lobbyists and Commonwealth Government representatives is conducted in accordance with public expectations of transparency, integrity and honesty.

Any lobbyist who acts on behalf of third-party clients for the purposes of lobbying Government representatives must be registered on the Register of Lobbyists and must comply with the requirements of the Lobbying Code of Conduct.

The public Register of Lobbyists contains the following information about lobbyists who make representations to Government on behalf of their third-party clients:

the business registration details and trading names of each lobbying entity including, where the business is not a publicly listed company, the names of owners, partners or major shareholders, as applicable; the names and positions of persons employed, contracted or otherwise engaged by the lobbying entity to carry out lobbying activities;

and the names of clients on whose behalf the lobbying entity conducts lobbying activities.

SAMPLE LOBBYIST PROFILE: ” ___________________________________________________________________

Penny Bright Penny Bright | Tuesday, June 7, 2011 – 9:05pm

June 7, 2011 Posted by | Fighting corruption in NZ, Fighting corruption internationally | Leave a comment

NBR: ‘Destiny seeks support for govt contracts’ + my comment

Destiny seeks support for govt contracts

“I expected steam to come off” Tau Henare: “I expected steam to come off”

The government will treat any application for Whanau Ora funding from Destiny Church in the same manner as other requests, Prime Minister John Key said today.

Maori politicians including National MP Tau Henare, Labour MP Shane Jones, Maori Party co-leader Pita Sharples and Mana Party leader Hone Harawira were invited to speak at the church’s annual conference in Auckland on Saturday.

Destiny Church leader Brian Tamaki indicated the church was interested in government contracts including for Whanau Ora — a Maori Party flagship policy designed to improve efficiency of social services by lessening replication, and improving co-ordination between providers.

The programme focuses on families’ needs as a whole rather than responding only to a specific individual.

About 25 collectives involving 158 health and social service providers have begun to deliver Whanau Ora. Destiny Church has attracted criticism in the past over its controversial stance on homosexuality and claims from former churchgoers that it is a money-making venture.

Mr Key said the church could bid for contracts.

“They’d have to go and bid like anybody else, that’s a matter for those that determine those contracts,” he said. “But from our perspective, they are one of many, many people who have put their name forward for a contract — in the end the officials decide that.”

Dr Sharples said the church ran some good social welfare and education programmes.

He would not commit to backing calls for funding but said he would “certainly listen” to any formal request.

Green Party co-leader Metiria Turei was not invited to the weekend event. “I’m disappointed he (Bishop Tamaki) didn’t give his people the chance to hear the breadth of political views but the Destiny Church is very intolerant and many of their values are quite at odds from the Greens. We would have had to have talked about that and it would have been uncomfortable for them.

“I’m not sure I would have gone if I’d got an invitation.”

Freaky Mr Henare told reporters this morning it was “freaky” when churchgoers laid their hands on the MPs in prayer during the conference. “I expected steam to come off,” he said.



“About 25 collectives involving 158 health and social service providers have begun to deliver Whanau Ora.”

How much duplication of resources occurs under the ‘Whanau Ora’ model?

Is this not privatisation of social services – first to the ostensibly ‘not-for-profit’ NGOs – then what???

Isn’t this just the thin end of the privatisation wedge for ‘social services’?

Look at care for the elderly in NZ.

Devolved from the State to the churches – now run for private profit?

Another form of corporate welfare?

Where’s the accountability as far as the contracting-out of these services is concerned?

In my considered opinion – there is little enough ‘transparency’ and ‘accountability’ with the spending of public monies on public services , by ‘public’ (government – especially local government) bodies – let alone NGOs. Penny Bright Penny Bright | Tuesday, June 7, 2011 – 5:23pm


reply >SPAM< Penny Bright | Tuesday, June 7, 2011 – 5:23pm >SPAM< Anonymous | Tuesday, June 7, 2011 –


8:59pm reply

Getting whanau ora funding sounds like another “piggie snouts in the (government) trough oportunity ” for Destiny and the other organisations of questionable value who line up for it. Would any of them stand up to a full audit and be accountable for every dollar gained.

Doubt it !

Just like the bums on seats payments to language schools and other training establishments who have ripped this country off for zillions.

The NZ government departments are so inept when it comes to spending the tax dollar wisely. Anonymous | Tuesday, June 7, 2011 – 8:58pm

June 7, 2011 Posted by | Fighting corruption in NZ, Transparency in Govt spending | Leave a comment



Thursday, June 9 · 9:00am – 10:00am

2 Molesworth St, (opposite Parliament Buildings) Wellington.

Created By

More Info
Court case is now Thursday 9 June (not Wednesday 8 June).
So – PROTEST is now Thursday 9 June 9 – 10am.

(Then quiet solidarity support by being there, for those who can be there, inside the High Court.

Human rights lawyer Tony Ellis is defending Vince.

The Solicitor-General is trying to jail Vince Siemer (again) because Vince publicised J Winkelman’s decision that the Urewera 18 were being denied a jury trial.

Vince Siemer is defending FREEDOM OF EXPRESSION (again) and is facing imprisonment (again) for so doing. As with the Urewera 18 – the charges against Vince should (and must) be dropped.

It is now time for solidarity and support for Vince Siemer.

Hope to see those of you who can make it outside the Wellington High Court! I’ll be there. Penny Bright


7 June 2011


9 May 2011
In a Wikileaks disclosure posted on 28 April 2011, it is revealed at cable “7” that New Zealand Police advised the U.S. Embassy in Wellington in late 2007 that the 18 accused in the Operation 8 “terror raids” are likely to face fines not exceeding $4,000.

This revelation is the latest in a massive prosecution which has since cost taxpayers over $13 million ahead of trial and is the subject of a United Nations complaint against the New Zealand Police and blanket suppression orders by the New Zealand courts.

In related action, Crown Law has claimed to have spent over $100,000 prosecuting kiwisfirst publisher Vince Siemer for breaching suppression orders relating to these secret court proceedings. Siemer’s trial for publishing High Court Judge Helen Winkelmann’s December 2010 order denying the accused their statutory right of trial by jury is set to commence in the Wellington High Court on 8 June 2011. The Solicitor General David Collins is asking for Mr Siemer’s imprisonment notwithstanding the fact that even Crown Prosecutor Ross Burns has stated suppression cannot be justified in law and the accused in the case being reported on by kiwisfirst are realistically facing fines according to the Police.

Having been bankrupted by the New Zealand Courts, Mr Siemer is on legal aid. The cost of the trial is expected to cost taxpayers another $70,000 to prosecute and half this again to defend. This is assuming no appeal is necessary.



20 April 2011
The denial of trial by jury to the eighteen Operation 8 defendants by judicial decree is now before the New Zealand Supreme Court.  Though the New Zealand Bill of Rights Act, Judicature Act and Crimes Act all exhort the right to elect trial by jury, do not hold your breath that the Supreme Court will uphold the law and reverse the lower court decisions.

At the fore is the ease to which the still infant Supreme Court has repeatedly cast aside statutory guarantees to trial by jury in the most spurious fashion.  The lower court reasoning that a jury would use improper reasoning in its decision-making against these 18 defendants sounds too Orwellian to stand in law.  But the Supreme Court has been masterful in creating fictitious reasons why such laws have not mattered in the past.

Variously the Supreme Court has stated issues are too complex for juries, trials too long or, simply, made a broad reference that trial by juries are not fair to juries or judges, or have been denied in some case in some other country.

The seminal right to jury, which has been a linchpin in the English legal system for 800 years, is being destroyed by judicial fiat in New Zealand.  If you think the effects will be benign, or even positive, consider the following Supreme Court decisions.

In 2009, the Supreme Court, when prohibiting trial by jury in Wenzel v Queen, surreptitiously tagged on an irrelevant opinion to obscure contravention of clear statute when it ruled “The proposed grounds of appeal are quite hopeless. First of all, it is an impossible argument that a fair trial requires a trial by jury.”   The appeal did not state “fairness” as a ground: it relied upon Bill of Rights Act and Crimes Act guarantees.  If this was not troubling enough, the Supreme Court relied upon a Canadian case, R v Lee, where the defendant did not show up for his jury trial, and then was denied one, as grounds why its decision to prohibit jury was consistent with the Canadian Charter of Rights and Freedoms.

Wenzel was facing 7 years in prison.  In the subsequent judge-alone trial, he was sentenced to 5 years by District Court Judge Epati.   In later overturning the verdict and ordering a new trial, the Court of Appeal pulled no punches in stating the Judge had failed fundamental principles of fairness and logic in finding Wenzel guilty.  Equally troubling, the Judge dismissed charges against the lawyer who was Mr Wenzel’s co-defendant and gave that lawyer name suppression without justification and without providing reasons.   Fairness by judge-alone?

In Solicitor General v Siemer last year, the Supreme Court covered up the fact that the High Court ignored Mr Siemer’s election to trial by jury by quashing the judgment and ordering a new conviction and penalty of three months prison, thereby meeting the Bill of Rights Act threshold for judge-alone trial.  Proving the judges on the highest court are eminently more efficient at least than juries, the bench declared a new trial was not necessary because the Solicitor General’s unsworn submissions from the bar were sufficient to confirm guilt.

Then there is the case of Gregory v Gollan, where the Supreme Court, in 2009, reaffirmed the lower courts were correct to use discretion to deny Mr Gregory’s “application” for trial by jury.  Gregory’s counsel responded to the Supreme Court that an “application” was not required and was not made.  He asserted Judicature Act, section 19 A(2) gave Gregory the direct right to “require” a trial by jury.  Because the Supreme Court’s actions were such a blatant contravention of the rule of law, Counsel requested Attorney General Chris Finlayson intervene in the public interest.  Finlayson’s office responded simply that judicial independence effectively means judges can pick and choose which laws they want to apply in New Zealand.  For its own part, the Supreme Court refused to be pulled into defending its seemingly lawless decision and simply ignored the evident inconsistency brought to its attention.

We may not consider this issue important now, but there are profound reasons why trial by jury is central to egalitarian legal systems.  History will judge New Zealand jurisprudence on this issue of trial by jury.  And history has shown us that public complacency is an elementary factor in degradation of the rule of law by those in power.



12 April 2011
The Urewera 18 have applied to the Supreme Court against the Court of Appeal’s rejection of their right to trial by jury.

Citing no right to appeal interlocutory judgments ahead of trial, the Crown prosecution opposes the Supreme Court considering the matter until at least after the scheduled trial in August, if at all.

In what is already the most expensive prosecution to taxpayers in New Zealand’s history, the result will be a mistrial if Crown argument is accepted and the Supreme Court determines post trial that denial of jury breached New Zealand Bill of Rights Act and Crimes Act guarantees.  Strategically the Crown’s hope is that a fait accompli on judge alone trial will bolster the economic pressures on the Supreme Court upholding the lower court’s imposed discretion to deny this statutory right.

Meanwhile, it has been reported in the Whakatane Beacon that Tuhoe will back a request to solicitor-general David Collins later this month to drop all charges against the 18 defendants.  After the September 2007 raids held many without bail on terrorism charges, public protests forced Mr Collins to reduce the charges to various weapons, drugs and gang charges.   It is reported Tuhoe leader Tamati Kruger said iwi would endorse the request to drop charges, sponsored by lawyer Moana Jackson and Auckland University law faculty professor Jane Kelsey, adding “These people will never, ever get a fair and just trial.”

The original Police affidavit used to obtain the warrants to make the arrests which grabbed world headlines 3 ½ years ago suggests several defendants were charged because of their personal association with their co-defendants or for using offensive language in describing Police.  Despite a court-ordered public suppression order of this police affidavit from day one, Auckland High Court Judge Helen Winkelmann read out key phrases for the TV cameras in court when revoking bail against one of the defendants Jamie Locket a week after the arrests.  Those sensationalist excerpts, that “white men are going to die in this country” and “I am going to go commando”, were not given any context and were not representative of the police affidavit.  Talk radio was ablaze in the days afterward, with many advocating reestablishment of the death penalty.

Three years later it was Winkelmann who denied 14 of these 18 defendants their statutory right to trial by jury on grounds jury members will likely use “improper reasoning processes” in reaching a decision and the trial is expected to be lengthy.  As with the affidavit, the Judge suppressed her ruling from the public.  It is this decision which the Court of Appeal upheld last month and the Supreme Court is now being asked to consider.


(The following article is not connected to the ‘Urewera 18’ case – but provides more information about what I consider to be the persecution of Vince Siemer.  Penny Bright)



31 March 2011 
Okay, Justice Hammond ruled in yesterday’s record $920,000 Court of Appeal ruling against kiwisfirst publisher Vince Siemer, “We have not had our attention drawn to any worse case of defamation in the British Commonwealth, and our own researches have not disclosed one.”

The judge who wrote New Zealand’s handbook on judicial conflict of interest would know.  Hammond, after all, was the trial judge in 2001 who appointed Michael Stiassny, the alleged victim, receiver of the debt-free company with $175,000 cash at the centre of the case, and to whom Stiassny reported –  “We had begun disbursing monies to unsecured creditors on the basis of our understanding that funds would be provided by shareholders to support ongoing trading costs as provided in our cashflow forecasts.  We now have no such assurance and accordingly no further funds will be released to pre-receivership creditors”.

Judge Hammond had been formally requested to disqualify himself in Stiassny’s lawsuit against Siemer.  When Hammond refused, Siemer took the refusal to the Supreme Court.  Mr & Mrs Siemer both provided affidavits to the court swearing Stiassny bragged about Judge Hammond being his good friend and the Judge was a material witness to Stiassny’s alleged accounting misrepresentations.  In response, His Honour provided a statement to the Supreme Court claiming he had no conflict because his previous involvement was before Stiassny became involved.  When evidence was provided to the Supreme Court showing His Honour had lied – he not only appointed Stiassny but had dealt with Stiassny in the case over seven months – the Supreme Court issued this Minute.  Any lawyer will tell you the most likely reason the Supreme Court would issue a Minute rather than the appropriate ‘judgment’ was to keep evidence of Judge Hammond’s material deceit out of the official record.  Proving justice is blind, the judges on New Zealand’s highest court publicly stood by their orginal ‘judgment’ that “bias, actual or apparent, could never have been responsibly alleged”.

Same with the Stiassny defamation claim.  Astute observers would have noticed the Court of Appeal earlier prohibited appeal against the defamation judgment, allowing challenge to only the quantum of the award.  Why did it limit the statutory right of appeal?  Could it be there is something the court is hiding?

The lynchpin in the defamation claim had always been whether Siemer was lying about the most powerful insolvency practitioner and employer of judges in New Zealand falsely labeling a solvent company insolvent.  Understandable.  If evidence existed that Stiassny wantonly labeled a solvent company insolvent, his professional reputation would be justifiably hammered.  So forget about what Siemer says.  The honourable Court of Appeal has declared Siemer is maliciously telling falsehoods and Stiassny is the poor victim – after preventing challenge of the defamation finding which was the product of a closed hearing where only Stiassny, his lawyers and the High Court judge met.  That is right: the ‘trial’ itself was ex-parte.  Rather, look at the two separate handwritten file notes of Stiassny’s lawyer Robert Fardell QC six months into that receivership (note that “Ferriers” refers to Stiassny’s insolvency company Ferrier Hodgson).

Long before his judgment yesterday, Justice Hammond was the subject of a Judicial Conduct Commissioner complaint over his alleged conflict of interest in this case.  Now that Hammond has replaced Geoffrey Palmer as President of the Law Commission, expect the JCC, who has been sitting on the complaint for two years, to claim lack of jurisdiction.  As any law-abiding citizen, Siemer has nowhere else but the Courts to turn for redress.

Such is justice in the New Zealand Courts.  Anyone who believes this is an unusual situtation can be forgiven for not knowing how the courts routinely and secretly operate here.  Perhaps it takes the “worst case of defamation in the British Commonwealth” to open the public’s eyes.

June 7, 2011 Posted by | Fighting corruption in NZ, Human rights, VINCE SIEMER REPORT | Leave a comment



31 May 2011
The resurrection tour of disgraced Supreme Court Justice Bill Wilson (pictured) swings back into action with an interview scheduled to run on TVNZ‘s weekly Court Report program 16 June. Despite the actual interview not scheduled until 14 June, it is being touted as one of explosive revelations, with criminal defence lawyer-host Greg King bragging on facebook he could sell tickets.

Supreme Court Justice Wilson resigned last October amid revelations he ruled in favour of his bank (BNZ) and business partner (Alan Galbraith QC) when on the Court of Appeal. Since then, Wilson has given one interview – to his lawyer’s wife, Deborah Coddington of the NZ Herald – where he claimed he had done nothing wrong and chastised the government Ministers for not rushing to his defence. Though Wilson has since told friends he intends to expose the widespread partisanship of his erstwhile judicial colleagues which proved his indiscretions tame in comparison, do not look for the King interview to expose any secrets, despite its billing.

One reason is Wilson has been paid buckets full of money to remain quiet.  In addition to the well-publicised million dollar payout that precipitated his resignation from New Zealand’s highest court, kiwisfirst was tipped off that Wilson is also receiving large government superannuation payments. However, in response to an Official Information Act request, the government has refused to disclose the amount, citing privacy as the reason why taxpayers cannot know how much of their money Wilson is getting.

Notwithstanding this ongoing largesse, Wilson understands his agreed silence cannot be enforced since confidentiality agreements are not enforceable to cover up criminal activity. The former judge has been reservedly astute in playing this card. Consequently, judges and his Queen’s Counsel mates are falling over Wilson to placate him and bring him back into the fold. Powerful QC’s such as James Farmer and Colin Carruthers reportedly have his ear, but his relationship with one-time great mate (Chief Justice) Sian Elias is by all accounts still strained. While Elias was as supportive of Wilson as practical through the ordeal, it still rubs at Wilson that Elias’ was guilty of much more egregious offending, yet has come out above the fray.

Meanwhile, Green List MP Dr Kennedy Graham’s bill which would require judges disclose their pecuniary interests is in Committee, bogged down by political infighting and recent events in Christchurch.  Attorney General Chris Finlayson has proposed an alternative legislative overhaul to the Judicature Act, quietly telling judges on the powerful Rules Committee that they will be allowed to write what effectively will be a Clayton’s Act as to how they conduct themselves if he has his way. This approach fits with Prime Minister John Key’s attempt to promote New Zealand as a corrupt-free zone for international investors, along the line of Singapore. The Prime Minister has repeatedly told his ministers that exposing judicial corruption is off limits as it will undermine public confidence.

New Zealand is virtually unique in the world’s democracies in refusing to consider corruption exists or implementing processes to look for it. As kiwisfirst reported twice in the last two years, Transparency International New Zealand receives 1% of its funding from memberships and more than 90% from the NZ government on the proviso it focuses its work off shore on the smaller Pacific island nations. Several of TINZ’s New Zealand directors are government employees who also run consultancy firms which specialise in obtaining government grants for their clients.

June 7, 2011 Posted by | Fighting corruption in NZ, VINCE SIEMER REPORT | Leave a comment



7 June 2011
Barrister Francisc Deliu has filed a claim in the Auckland High Court against the Office of the Judicial Conduct Commissioner, seeking writs of mandamus directing the JCC to address a complaint against District Court Judge David Harvey (pictured) filed more than a year ago and the District Court to produce the court transcript which Mr Deliu says supports his allegations of judicial misconduct.

The claim also asks for a ruling that both have acted unlawfully by failing to properly investigate the complaint and produce the relevant transcript.

The five page claim alleges the JCC failed his statutory duty to progress complaints promptly by sitting on the judge’s response for over 9 months and by refusing to request the court transcript on the basis he did not want to be seen to “assist” the complainant with his complaint.

The JCC has the statutory power to obtain court transcripts in his investigations and does so as a matter of routine. After initially agreeing to provide a copy, the District Court registrar reneged, stating in a recent letter that no transcript would now be provided. No reason was given.

Despite a statutory requirement to promptly process complaints alleging judicial misconduct and an amendment to the prevailing legislation doubling the JCC’s human resources, the Office of the JCC has several complaints as much as 3 years old. Backlogs of complaints increased 600% in the three years to 2010. The next annual report from the JCC is due in August.

Judge Harvey has been the subject of several past and current complaints and was personally sued in 1994 in a case which Harvey won on appeal on the grounds of judicial immunity. Two current complaints against Harvey concern his combative demeanour, including personal threats to counsel without provocation.

June 7, 2011 Posted by | VINCE SIEMER REPORT | Leave a comment



5 June 2011
“What sort of madness has infected our legal system when what would be misconduct for a barrister becomes routine – and consequence free – for a judge?”  -A. Molloy Q.C.

As civil litigants increasingly avoid the Courts, and embarrassing judicial decisions in criminal cases are more visibly being spun at the appellate level, lawyers are beginning to publicly vocalize dissatisfaction at the poor quality of judicial appointments and the dire consequences of a lack of specialised courts in New Zealand.

What once was a rallying cry that our smallness made the courts more adaptable to necessary changes in the law, has resulted in one-size-fits-all justice from judges ill-equipped in the areas of laws they are ruling. The dog’s breakfast of court precedents which ensue undermine the vary fabric of the rule of law, stymie economic growth and make a mockery of NZ jurisprudence, as evidenced in recent critiques from NZ LAWYER and a trust law analysis paper by senior Queen’s Counsel Anthony Molloy. Both confirm the lack of judicial specialisation is resulting in judicial decisions which do not rise to the minimal expectation of litigants or the prevailing law.

Barrister Anthony Grant, speaking in the 6 May 2011 issue of NZ Lawyer kindly intoned “With four million people, it is very difficult for us to be a cradle of legal excellence in all areas of the law” as he issued a clarion call for what he labelled “the Hong Kong enhancement” – drawing on international jurists to augment skill deficiencies on the NZ appellate bench.

Mr Molloy QC is less guarded, suggesting the Court has adopted the metaphorical view in its own practices that a family doctor can perform neurosurgery because her medical degree qualifies her to do so. In the NZ courts, this has resulted in former-prosecutor judges writing non-sensical, if not dangerous, decisions in the specialist areas of trust and fiduciary law, based upon little more than their gut feelings as lawyers. Conversely, commercial-lawyer judges routinely make a mess of criminal cases, resulting in far more appeals than would be expected, or even tolerable, in a competent court system. The consequence is increasing consternation regarding NZ court rulings among prominent legal scholars around the globe.

Ironically, Attorney General Chris Finlayson agreed when National came into power three years ago, phoning Mr Molloy to praise his prior critique of judicial skills in areas of legal specialisation “Cuckoos in the Nest” and to express his personal commitment to improve judicial competence through specialisation. But since then Prime Minister John Key made it clear to his caucus that he considers identifying weaknesses in the NZ legal system will undermine his attempts to portray New Zealand as a legal bastion for global investors along the lines of Singapore, Delaware in the U.S. and the Netherlands. The problem for the Prime Minister – and the country – is that foreign investors find it hard to miss when a High Court judge, incompetent in the areas of fiduciary or trust law, declares “the appropriate way of looking at the defendants’ financial situation is to do so globally and ignore the fact that the home is settled in a trust. This is a device which has been used for the benefit of the defendants”, as in the recent ruling Matarangi Beach Estates Ltd v Dawson, or, as occurred in Harrison v Harrison, the Judge ruled discretionary beneficiaries have “no rights enforceable in equity”.

Mr Molloy, the preeminent expert on fiduciary and trust law in New Zealand, indicated his increasing embarrassment at international conferences when being confronted by his peers with capricious NZ court judgments which, in the words of distinguished contract law Professor David McLaughlin, fail to “display any feel for the underlying principles and purposes of the relevant law.”  He is equally concerned by the Law Commission’s April 2011 reference, without apparent doubt or discussion, to at least one very dubious line of New Zealand cases asserting an alleged “inherent jurisdiction” which appears to flatly contradict leading cases in other jurisdictions.

Molloy’s personal alarm echoes a recent report by the International Funds Services Development Group that “lack of depth and requisite skills in the High Court and Court of Appeal is emphatically an issue of fact and it is not a mere issue of perception.”   Despite the Prime Minister’s attempt to perpetrate the myth abroad and ignore the reality at home, Mr Molloy prudently notes the contrast with the specialised and precedent-distinguished courts of Jersey and queried, “How much of your trust work would you shift from a jurisdiction in which the trust judgments command that level of admiration, to a jurisdiction in which incompetent trust advice, argument, and judgments such as those I have been describing are routine?”

June 7, 2011 Posted by | VINCE SIEMER REPORT | Leave a comment