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.
Trial judges can find Supreme Court guidance confusing, and sometimes impractical. I understand, for example, that recent Supreme Court dicta in Abdula (on procedures when defendants need translators) has resulted the rare step of District Court judges formally warning the Ministry of Justice that such trials will double in length. This may be a simple illustration of the dangers of Supreme Court "legislating" without the kind of information that legislators commonly get.
The Supreme Court judges sit in an $80m new building with too little to do that really needs doing.
We've given ourselves a Roller and 5 chauffeurs for what should, in a country this size, be around ten to twenty outings per year. Previously a rich old uncle let us borrow his extra Roller when needed from his world renowned garage. It came with his vastly experienced chauffeurs.
Until they landed this pseudo job our new chauffeurs were well respected in gainful truck driving. Now they are tempted to spend their spare time developing incomprehensible self-indulgent expositions and presumably bickering (since they often do not see their way to a consensus). On most issues they should be reconciling differences, finding principled and predictable ways to ensure that the law is simplified each time they have an excursion.
Ideally that clarification would align with ordinary decent people's instincts for what the law should be. Dr Farmer criticised the Morse judgments, essentially for not so aligning. I've posted on that case here and the Court here.
I'm dubious about criticising a freedom of expression decision for not being in accord with majority feeling (though judges should test their instincts carefully when majority opinon will be outraged). More importantly Morse is one of the cases in which the judges have not coordinated their reasoning. Even acknowledging in their individual ruminations the contrary or coinciding view of their colleagues, and narrowing the room for misconceiving the scope of their disagreements would have been useful..
The proportion of cases in New Zealand now going three rounds is far above that of other common law countries, with no evidence of added certainty or clarity. The rule of law is imperilled by justified public disdainan for the law's delay, cost and outrageous outcomes. The Supreme Court is an enormously expensive indulgence for lawyers at the expense of litigants, and those who dare not get embroiled in litigation..
I look forward to more from the emboldened barristers on how to fix the problem. I'll post more on that. The solutions need not be complex. But there is a risk. This matter is too pressing and too important to be handed off to the odd assemblage comprising the Constitutional Review.
The Court Report will be broadcast again on Channel 7 at 10-05 pm on Sunday.