12/07/2011How good is our supreme court?

Some time ago I decided to establish a web site, not because I was short of work but because, when googling myself (because others had apparently done it), I was at first gratified that I had apparently made the list of “Best lawyers” in a US publication but perturbed to find on further reading this was in the category of arbitrators and mediators.  Never having been either and not wanting to be charged with misleading conduct, I decided that a web site which at least summarised my legal career and fields of practice was a necessary self-defence mechanism.  Hence this web site.

Having gone that far, I then wondered if there was a way of inducing people to return to the web site from time to time if they ever ventured there in the first place.  I did think that now and then I had views and thoughts about legal matters that others might be interested in, if only to express strong disagreement with them.  And so I decided to incorporate into the web site what will hopefully be a regular (every few weeks) comment on contemporary issues.  It is possible to “subscribe” for them by entering an email address on the home page in which case a message will be automatically sent advising of a new commentary as it is posted, at which point it is entirely up to the recipient to decide whether or not to come back to the web site to read that commentary.  All of us, I am sure, are fed up with receiving unsolicited emails and I am intending to avoid that.
So for the first column, I have chosen the deliberately provocative title “How good is our Supreme Court?”   Having perhaps seduced the reader to read this far, I should however now disclose that I do not intend to undertake a comprehensive review of the Court or to revive debates around whether we should have replaced appeals to the Privy Council.  That is history.  

It was for that reason perhaps a little surprising that Justice Peter Blanchard should recently, when delivering a paper on law reform, have felt the need to defend the Court’s record at some length and to have done so by references to the Privy Council.  His basic point, as I understand it, was that the Privy Council had been the prerogative of tax and commercial litigants and that the Supreme Court has enabled the full range of litigants to seek to go to the ultimate level of appeal.  At least the second part of that statement is undoubtedly right but what the results of that may be is perhaps a matter for another column (but perhaps not, also).  
For myself, I would at this point say this much.  I have generally thought that most of the Judgments of the Court that I have read are reasonably unexceptional in outcome and any criticisms of reasoning are more the product of separate Judgments that take different lines, and thereby create confusion and uncertainty in the law, rather than of the substance of that reasoning.

I do not propose to venture further than this by way of general observation of the Court’s performance to date.  In particular, I do not feel the need to draw to readers’ attention the fact that the Judges on the Court can be said to have “the necessary qualities of intelligence, logical thought and analytical rigour”, as did the former Justice Thomas recently when accusing the Court of having departed from the standard required to prevent the impairment of confidence in it.  That criticism was made in relation to the Court’s Judgments in the Bartle case – paradoxically one which is widely regarded as having restored the confidence of the banking and financial sector following contrary Judgements in the Court of Appeal that gave rise to much concern in that sector.   It is enough to say that the very presence of the present Judges on the Court can be assumed to be the result of the qualities that Thomas says are required.

My criticisms, if I can express them with respect, are limited to 2 recent cases.  
The first relates to the superficial way in which the Court dealt with the important competition law issues that were rightly brought to it in Commerce Commission v. Telecom (the 0867 case).  As (losing) counsel in the case, I do not comment here on the outcome – indeed from the point of view of the Commerce Commission wanting to establish a precedent that clarified the law that may not have been that important - but I think I am entitled to endorse the views of many others practising in this important area of law and policy that we were entitled to much better principled guidance than we received in the short Judgment that was delivered.  Giving guidance and certainty on issues of public importance is, after all, part of the raison d’etre for the Court.  The that claim that New Zealand and Australian law on what constitutes taking advantage of market power are now in harmony will simply not withstand analysis.

The second case which in my view warrants serious question is the Morse case as to which it can be said that, if the Supreme Court wishes to gain acceptance as the source of wisdom on all legal matters, it did itself no favours.   In that case, the Court overturned Judgments of the District Court, the High Court and the Court of Appeal that a protestor burning the New Zealand flag in front of veterans and their families at an Anzac Day Dawn Parade was not offensive behaviour.   
The National Business Review, which has always held very strong views about the Privy Council-Supreme Court debate, took the opportunity to revive that debate (a pointless reaction, in my view), but was undoubtedly on solid ground in expressing a sense of outrage about the Court’s decision and in reminding us (those who needed reminding) of the sacrifices made by the previous generation (and their families) in fighting for the liberties we enjoy today.   

As one reads the learned discourses of the separate Judgments of the Court in which the history of the legislation and relevant case law is analysed in great detail with great skill, it is hard to suppress a cry for the injection of some homely common sense and a far greater degree of sensitivity for those who were offended.  If the law really be that there must be a danger of some degree of public disorder before the offence is committed, then Ms. Morse must count herself lucky that she was arrested so swiftly and that she therefore was able, through her counsel, to take part in an arid legal debate in the highest court of the land rather than face what must have been the inevitable wrath of the 5000 strong crowd of those attending the ceremony and wishing to pay respect to the dead.  
Ms Morse can surely also count herself lucky that the Court was so tolerant of her counsel’s decision at trial not to cross examine witnesses whose evidence, on any reasonable view, would have supported a conviction, even on the Supreme Court’s more stringent test of offensive conduct.  And whether she was entitled to have the benefit of the Court’s discretion not to order a retrial is another question upon which there will be other views.
On that sombre note, I conclude this inaugural commentary.  The web site is not a blog and so there is no facility provided for retort.  The best form of dissent from anything that I have said above will however be not to accept the invitation to be advised of future commentary!   As to that, my intention is say something next about happiness, living a balanced life and legal practice.

Jim Farmer August 2011