In which the author seeks to have the New Zealand legal community do his job for him. 

I've been asked by a colleague at an overseas law school to contribute to a special issue of their journal. The topic for the issue is: "The worst decision by a nation's top court of the last 25 years."

As the Kiwi representative, I'm expected to give a response to that prompt in relation to New Zealand jurisprudence. But I thought I'd throw it over to the knowledgable and opinionated readers of this site to crowdsource their wisdom (or, at least, pick up some suggestions of avenues that might be worth chasing down).

So - in the comments below, what do you think our top court's worst decision has been in the last quarter century, and what makes it so bad? I'll be interested to see if there's any sort of consensus on this question, in the same way as US lawyers virtually all agree Dred Scott, LochnerPlessy and Korematsu were bad. I'll also be interested in what people think makes a "bad" court decision in the first place - is it the reasoning (or lack of), or the consequences, or something else instead?

There we go - have at it. I'm far too busy with the NFL play-offs to be thinking about this sort of nonsense for myself.

(PS: If there's anyone out there who feels a bit cautious about climbing into the Supreme Court in a semi-public forum, you can drop me your private thoughts on my (munged) email: andrew.geddis-at-otago.ac.nz.)

Comments (24)

by Graeme Edgeler on January 23, 2012
Graeme Edgeler

Prior to 2004, are we looking at the Privy Council, or the Court of Appeal? Because the logic in Quilter that - whilst somewhat appealing to the technocrat in me - determined that a ban on two people of the same sex being married to each other didn't discriminate against people who are gay doesn't really seem to have been followed in any other major court grappling with the issue.

Not a big fan of Shaheed either (I'm much more of a Scalia on questions like this), but I think the worst decision(s) of what was then the Highest Court of our nation (straining, because they actually went to the Privy Council) would have to be in R v Boyd and R v Donaldson, with Keith J and Madam Registrar sitting.

by Andrew Geddis on January 23, 2012
Andrew Geddis

Prior to 2004, are we looking at the Privy Council, or the Court of Appeal?

That's a definitional question I'm wondering about myself. I'm tempted to take the theme at face value and say "Privy Council" ... after all, it must have done a pretty shitty job on a number of occasions in order to justify moving to a full home grown replacement, right?

by Graeme Edgeler on January 23, 2012
Graeme Edgeler

I would have thought "face value" would automatically exclude things that aren't even Courts...

by Andrew Geddis on January 23, 2012
Andrew Geddis

I would have thought "face value" would automatically exclude things that aren't even Courts...

Apologies - I meant, of course, the Judicial Committee of the Privy Council ... commonly (if inaccurately) referred to as the Privy Council simplicita. Now - what was its worst NZ decision from 1987-2004 ... and is it worse than everything the Supreme Court has done since?

by Graeme Edgeler on January 23, 2012
Graeme Edgeler

I had understood that even the Judicial Committee of the Privy Council wasn't a Court, in that appeals were to Her Majesty, who simply tended to follow their advice. But maybe that's my backward Victoria education miseducating me?

Also, while I'm not sure it was a bad or even wrong decision, but the hole left after Chapman is pretty big. And if you're feeling particularly churlish, the failure of the Court to fully appreciate the issue in Saxmere I did perhaps lasting damage to the public standing of the Court in a way not fundamentally different from the US cases you mention.

by Dean Knight on January 23, 2012
Dean Knight

I will give it some more thought, but I tend to read the substantive decisions of the Supreme Court reasonably benevolently. It's the leave decisions which I find more frustrating, for example, the refusal to grant leave in LabTests was extraordinary.

Quilter must also be one of the most deeply embarrasing decision of our (then de facto) highest court. Probably the right judicial outcome and flawed reasoning.  But the right political outcome in the end.

by on January 24, 2012
Anonymous

Just by way of brief (and perhaps somewhat unhelpful) comment on the original post, reference to PlessyKorematsu and so on surely sets the bar too high: even if one takes Bush v Gore or Citizens United, decisions of that extreme character are at least uncommon, if not non-existent, in the smaller, not to mention rather constitutionally and politically different, context of New Zealand appellate decisions.  Absent that controversy, the more likely prospect is that there are a whole series of potential "worst" decisions, depending on one's perspective: even leaving aside disgruntled unsuccessful litigants, there are any number of tax or contract or competition lawyers who find fault with particular decisions or with the entire approach of the New Zealand courts to their particular fields.

There is also the problem - perhaps other than in the egregious cases - that it's difficult to reach a confident critical conclusion other than as an expert, as illustrated perhaps by the other commentator - for example:

- the sweeping statement about Quilter is probably wrong:  Joslin, the consequent decision of the United Nations Human Rights Committee (sure, not a "major court", but perhaps - for the commentator above - worthy of some respect) reached the same conclusion; the Supreme Court of Canada declined to determine the question of whether the Canadian Charter required same-sex marriage; and, perhaps most recently, the ECHR took almost exactly the same approach in Schalk & Kopf v Austria.

- on Saxmere, the similarly sweeping statement is probably just wrong, too.  The judgments record that the first decision was based on some limited disclosure and the second on rather fuller disclosure.  Comparisons with upholding (and perhaps the commentator just didn't check) slavery, racial discrimination (twice) and sweatshops don't seem at all apt.

 Last, on the status of the Judicial Committee of the Privy Council, this just gives pedantry a bad name: yes, of course, the Privy Council gives its decisions by way of advice to the Queen in Council, but this is even more an empty point than any other such advice, given that (if one bothers to check before spouting off about "tended") "[t]hroughout its history the Judicial Committee has in practice exercised as independent a judicial function as any other court of law because, since 1833, the role of the Sovereign ... has been exercised formally" (P A Howell The Judicial Committee of the Privy Council, 1833-1876 (Cambridge, 1979) 36).  The more relevant point is that, in practice, a number of significant cases could not be or were not appealed beyond the Court of Appeal or were sent back, as in Lange, which is perhaps a good, albeit less scandalous, candidate for a "worst" decision, in terms of wasted time and, especially, money.

by stuart munro on January 24, 2012
stuart munro

The Sealord Deal must rank pretty high - but that would require recognising parliament as some kind of highest court...

Why - finding a foreign corporation had broken the law on quota accumulation, instead of seizing the quota or otherwise punishing the offenders, the crown stitched up a deal whereby the public bought the quota out at somewhat over real value, and presented it to Maori as a kind of compensation for the rather dramatic breaches of Treaty obligations involved in creating the QMS.

On paper it looked like Maori had been given an income stream comparable to US First Nations' casinos. But a combination of years of poor fisheries management, and possibly skill deficits rendered the deal much less profitable for the recipients than an equivalent cash injection. As usual citizens footed the bill, and the corporates pocketed the money.

Why the worst? The scale of cost, and the subsequent success of the operation.

by Andrew Geddis on January 24, 2012
Andrew Geddis

VBD: I mention Dred Scott and the rest simply because they are examples where almost every (US) lawyer immediately will say "oh yes - they were terrible!" In fact, such decisions get taught in law school as examples of what courts shouldn't do. I don't expect any NZ decision to sink to those depths in terms of content - as you say, the NZ courts' different constitutional role means they just don't get to make such calls - but I'd be interested to see if there was any similar consensus that a (relatively) recent NZ case nevertheless was a bad one (even if not quite as bad as my examples). Of course, if there is no such consensus, that in itself may be instructive ... it may mean that there is no generally accepted criteria for what makes a "good" or a "bad" court decision.

Stuart: Sorry - Parliament is outside the scope of present inquiry ... has to be a judgement handed down by people wearing magic black robes.

by Ben on January 24, 2012
Ben

The seemingly circular reasoning in the Telecom 0867 case (applying s36 of the Commerce Act) has been criticised by some high profile QCs, but this may be more a troublesome precedent based on counterfactual reasoning than a poor decision, per se. How would Telecom act if it had no dominance? The hypothetical seems a curly test of whether there has been actual abuse of market power, since Telecom had both market power and certain serivce obligations... but perhaps I should defer to the lawyers.

by IrishBill on January 24, 2012
IrishBill

The supreme court's decision on the definition of the work of a striking or locked-out worker (Air Nelson v NZAEPMU) was a poor decision in that it didn't just fail to recognise the intent of section 97 of the ERA but made it pretty much redundant by allowing casual contractors to do the work of striking workers.

by Peter Green on January 24, 2012
Peter Green

What was wrong with R v Donaldson?

 

by Graeme Edgeler on January 24, 2012
Graeme Edgeler

the sweeping statement about Quilter is probably wrong:  Joslin, the consequent decision of the United Nations Human Rights Committee (sure, not a "major court", but perhaps - for the commentator above - worthy of some respect) reached the same conclusion

The Joslin decision (if it's the one I'm thinking of) had a very good reason for saying there was no right to same-sex marriage: the right to marriage contained in the ICCPR notes that men and women have the right to marry, clearly indicating the intention that the marriage guarantee only applied to opposite-sex unions.

The Quilter decision, however, argued that there was no discrimination because heterosexuals and homosexuals were treated identically: that is, a gay man may marry a lesbian or straight woman, and a straight man may marry a lesbian or straight woman. A lesbian may marry a straight man, or a gay man, and a straight woman may marry a sraight man or a gay man. A gay man may not marry another man (gay or straight), but neither may a straight man, so are treated identically. A lesbian may not marry another women (lesbian or straight), same as a straight woman.

This only gets you so far. In this sense, the ban on same-sex marriage may be seen as treating everyone equally: no person may be married to a person of the same sex as them, irrespective of the sexual orientation of either person, but this ignores indirect discrimination, and the fact that this argument taken a step further shows that while the marriage laws may not descriminate on the basis of sexuality (in that there is no person a straight man may marry, whom a gay man may not, and no person a straight man may not marry whom a gay may), it would descriminate on the basis of sex (in that there are people who a woman may marry whom a man may not).

As Dean Knotes,* the result - that New Zealand law did not permit same-sex marriage - was the right one, but the reasons by which that result was reached were wrong.

on Saxmere, the similarly sweeping statement is probably just wrong, too.  The judgments record that the first decision was based on some limited disclosure and the second on rather fuller disclosure.

Exactly. True or not, the failure to fully investigate the first time around gives the clear impression of a Court failing in its duty. The Court had the time to get this right the first time around and didn't.

*terrible pun. sorry.

by Emma on January 24, 2012
Emma

I registered just to say pretty much what Graeme said.  Quilter was a mess of a decision. Five judges in the Court of Appeal gave five different lines of reasoning.

Gault J concluded that only "impermissible" discrimination was protected by NZBORA, and where there was established differentiation, only Parliament could rule it unjustified because of "social policy implications" (which he apparently felt did not need explanation).  Keith J said that Parliament could not have intended to "effect such a major change in a basic social, religious, public and legal institution" by enacting NZBORA.

Both those judges missed the entire point of NZBORA; just because the courts can't disapply legislation merely because of inconsistencies with NZBORA doesn't mean that Parliament-sanctioned discrimination is not discrimination.

Gault J was also the judge who concluded that because everybody was prohibited from marrying a person of the same sex, nobody was discriminated against.  Like Graeme points out (and as Tipping J recognised in the case), this ignores indirect discrimination: although everybody is prohibited in the same way, the effect of the prohibition is much greater on those of a different sexuality.

It seems like the judges didn't really know what to do with NZBORA and arrived at the right decision only because it was an Act of Parliament and there was no way NZBORA could ever override it.  The correct approach would have been to recognise the existence of discrimination but find that there was no way to interpret the statute to include same sex marriage.

(I'm not sold on the reasoning that marriage had to be male/female, but I'm trusting better legal minds than myself on this one). Besides, Parliament should step in - civil unions have an uncomfortable "separate but equal" logic behind them.)

by Malcolm B on January 24, 2012
Malcolm B
Graeme is right. Quilter is a good candidate. Just to throw it out there: Nicholls v Registrar of the Court of Appeal. On my phone and on a bus, so can't give chapter and verse, but if you read the subsequent Privy Council decision in Taito, you'll understand why it was so awful.
by Malcolm B on January 24, 2012
Malcolm B
(On a re-read, I see Mr Edgeler has already alluded to Mme Registrar's judicial role, which Nicholls nodded away).
by Graeme Edgeler on January 25, 2012
Graeme Edgeler

(On a re-read, I see Mr Edgeler has already alluded to Mme Registrar's judicial role, which Nicholls nodded away).

I considered Nicholls as the exemplar of Taito, but for all it's self-serving-ness (the case was a judicial review filed in the High Court, which the Hight Court decided was so important that it should be removed to the Court of Appeal, which declared that it was a criminal case, so that they could deny leave to appeal to the Privy Council etc.), I figured the criminal cases themselves were of fundamentally more offensive nature, and Boyd & Donaldson seemed the best worst examples.

If the aim of your piece is to make people think as much as possible about, but as little as possible of, the New Zealand Court system, Taito/Nicholls/Boyd is your case, perhaps even if you ignore the 25 year limitation.

by Eddie C on January 25, 2012
Eddie C

Another vote for Quilter.  It really is a total mess.  Keith J's judgment is one of the most disappointing things he ever produced.  Tortured (and not very convincing) logic to justify discrimination.  As others have said,  the result isn't wrong, given our interpretive BOR, but the obiter statements about the absence of discrimination are both self-evidently wrong and embarassing.  Gault J even manages to get in a little comparison to marrying kids, not exactly a neutral example when you're talking about gay men.

by Graeme Edgeler on January 25, 2012
Graeme Edgeler

Keith J's judgment is one of the most disappointing things he ever produced.

Boyd & Donaldson were pretty appalling.

Gault J even manages to get in a little comparison to marrying kids, not exactly a neutral example when you're talking about gay men.

I was going to point out that Quilter was about three lesbian couples, and that in general, concerns about marriage with children are concerns about girls being taken advantage of by men. But before I did, I checked what he said. It kinda sticks out, doesn't it?

by Paul Myburgh on January 25, 2012
Paul Myburgh

For a maritime lawyer, this is a relatively straightforward question, as the Supreme Court has decided only two shipping cases: Ports of Auckland Ltd v. Southpac Trucks Ltd and Tasman Orient Line CV v. New Zealand China Clays Ltd (The Tasman Pioneer). Both are awful. For a lengthier critique (insert shameless plug here) see http://www.maritimelaw.org.nz/myburgh/Carriers2CommonSense0.pdf

by Tim Watkin on January 25, 2012
Tim Watkin

My apologies to VBD for killing him off as a member. I've just been deleting some fake accounts and his lack of a proper name, dodgy-looking email details and lack of a profile made him look suspect. VBD, please re-join, but open up a bit so you don't look like an online hustler trying to sell sunglasses. Ta.

by James Meager on January 26, 2012
James Meager

Let's throw in a nomination for Baigent and/or Moonen. Naughty Justices reading in naughty provisions where they shouldn't have. Or at least I think that's what Jim Allan would want me to say.

Alternatively, Taylor v Beere for the entrenching of exemplary damages in NZ private law, without really putting in a good effort as to why.

by Anthony on January 30, 2012
Anthony

R v Williams - the undue delay case (as opposed to the search warrant case which I love). This was a case which had so much promised and potential and yet delivered so little. Admittedly, it was far from the most meritoritus of cases to start with but the result has (wrongly IMHO) been a virtual moratorium on stays for undue delay even in compelling circumstances.This case is an excellent example of why the NZ Supreme Court - like it's US counterpart - should be able to summarily dismiss appeals (following argument of course) in cases where leave was wrongly granted.

by Malcolm B on February 03, 2012
Malcolm B

R v Williams is a howler, no doubt - even putting the result and consequences to one side, the reasoning is opaque, inconsistent with that in other recent and well-reasoned NZSC cases and does not display the court's usual adeptness in synthesising decisions from other jurisdictions.  I don't think this can be excused on the basis that leave shouldn't have been granted either. In the decision the court consciously and unanimously changed the law. If they didn't want to change the law, they didn't have to - they could have simply applied the existing principles and dismissed the appeal without making any ex cathedra statements on the subject...

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