Thursday, 28 October 2010

Judicial Bias In Australia

Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 222  is a recent New South Wales Court of Appeal judgment which has an interesting spin on disqualification of judges for bias. The case was an appeal against an action in the Supreme Court which resulted in a very substantial award for the actions of some Australian lawyers in Kazakhstan in leaving their old law firm and taking the clients with them. The law firm then took global action against the Australian lawyers, which for those who know me will be aware I was briefly involved. My part was a bit part of no consequence, but the case has created some interesting law, not much of which survived to the Court of Appeal. In this note I will just deal with the bias aspect because this has some resonance for New Zealand lawyers following the recent resignation of Justice Bill Wilson from the New Zealand Supreme Court.

The Nicholls case is somewhat different, but the NSW Court of Appeal overturned the decision on a number of grounds including what is described as a reasonable apprehension of bias. The court held that because the judge heard a number of ex parte applications over a lengthy period, in which the courts were closed, including keeping secret files in his chambers at one stage, that a dangerous perception of bias was created. The defendants only became aware of the existence of the ex parte applications and the content and the confidentiality orders late in the day. They made an application that the judge recuse himself, but he refused.The test was applied of whether a fair minded bystander might consider that trial judge might not bring to bear a mind free of prejudice against the party in whose absence affidavits had been read and orders made. It is worth noting that the court identified seven occasions on which the judge had entertained ex parte applications in closed court and  had delivered three confidential judgments and had made confidential orders. There were 3 applications for recusal, rejected by the trial judge.

At  para 10 the court said:-"Because the hypothetical fair-minded observer is postulated to emphasise the purpose of maintaining public confidence in the administration of justice, the postulate has particular relevance in circumstances where a judge may have confidence in her or her colleague’s ability to avoid prejudgment, but the lay observer may not. On the other hand, where the reviewing judge holds an apprehension of prejudgment it seems unnecessary to ask whether that apprehension would be shared by the lay observer. As the present case illustrates, to inquire into the mind of the lay observer may, in some circumstances, require the attribution of quite sophisticated knowledge about how the legal system usually operates. Without that knowledge, the lay observer may say, ‘If that is how the system usually operates, I am content with that’. A judge may know that that is not how the system usually operates, or is not how it should operate. It might be thought sufficient for the reviewing judge to rely on his or her own apprehension of bias in such circumstances, rather than undertaking the wholly artificial exercise of transferring the knowledge of the professional to the hypothetical lay observer. To reiterate, the role of the lay observer may be critical in the reasoning process where the reviewing judge does not personally entertain a relevant apprehension"

However the failure to properly consider the effect of the confidential material on an assessment of the evidence of Mr Wilson where issues of adverse findings were considered, meant that that a lay observer may have thought the judge biased.

The law firm is I expect upset that they have to have a rehearing of the case, although some of the other findings of the judge did not survive either and the result on re hearing may be different. It illustrates the enormous litigation risk, even with the best counsel and leading law firms. But it can also demonstrate the need to focus on a few good points rather take a scattergun approach to litigation. If this had been done, and a more open and transparent approach rather than the secret squirrel approach adopted, the judgment would have been more focused and less susceptible to appeal.

Wednesday, 27 October 2010

Parole system working - study - crime - national |

Parole system working - study - crime - national |
There has to be some good news about crime, and I am confident that with the skill and care and humanity of Judge Carruthers, that this will continue. Now we need to address the prisoners still in jail and ensure they are ready for release. There are some good initiatives there as well.

Friday, 22 October 2010

New District Court rules

This is just anecdotal evidence, but in talking to the High Court staff today, they had noticed an increase in summary judgment applications filed in the High Court but within the District Court level of  $200,000. This is an obvious vote of no confidence in the new procedure in the District Court. This combined with the silly new filing fees (look at this) which instead of rounded amounts are now silly amounts like $408.89 increased from $400, makes me wonder who in the Ministry of Justice actually has any experience at the coal face of practice, and why they appear not to consult with practical people. I despair.

Enforcing liquidated damages: A shade of grey | Magazine Comment | Building

Enforcing liquidated damages: A shade of grey | Magazine Comment | Building: "Enforcing liquidated damages: A shade of grey"
New Zealand law is still firmly against liquidated damages, but I was referred this decision recently via Rashmi Dube-Spruce, who is an English mediator and construction solicitor. I suspect that the particular facts of this case may distinguish it in New Zealand but it may be worth citing. The case is at Azimut-Benetti Spa (Benetti Division) v Healey [2010] EWHC 2234 (Comm) (03 September 2010) 

Wednesday, 20 October 2010

Time Limits

I have started a page on time limits. This was prompted by attending the New Zealand Law Society Seminar on the new Limitation Act, and will be a work in progress. I welcome suggestions. Go to the page at Time limits

Monday, 18 October 2010

Chris Kahui

There has been considerable criticism of Chris Kahui following his evidence at the inquest into the deaths of his children. What haunts me was the story from the reporter who commented on Kahui, after giving evidence, struggling for 4 hours to read the transcript of his evidence. This together with the struggle to give evidence which made sense, and the slowness of answers paints a picture of a man with, at best profound reading difficulties. Those who meet consumers of the criminal justice system report that such difficulties are common. Tony Ellis has commented with some passion on acting for the intellectually disabled, and the difficulty of getting sensible instructions. The problem with Chris Kahui demonstrates that many with learning disabilities also have problems in the justice system, although he would not be labeled as intellectually disabled. Where are the reading and other programs in prisons and where are the community based initiatives to deal with these learning difficulties? Some of the community based programs were abolished with the cutbacks in community education earlier this year. And there are more programs in prison now than under the previous administration. So where does this lead to?
We need to understand that a chunk of our prison population is there because they have education problems of differing degrees, including illiteracy, dyslexia, and even deafness preventing them from understanding what they were taught. So the solution is to punish them by placing them in groups with similar problems, in a place where they don't get much chance to repair their shortcomings. At least we do not execute them or chop off hands, but sometimes I think execution would be preferable for me rather than being locked up for 20 years. Chris Kahui was acquitted, but the profile he presents is similar to many who fall through the education cracks into jail.

Friday, 15 October 2010

District Court Rules

The new District Court Rules-where should I start? I have much respect for the judges who spearheaded the reforms. But I have also heard nothing but negative comments on the vastly more complex forms now needed for the rules to start a new case and much lamenting for the loss of summary judgement at first instance. If the object of the reforms was to make the District Court accessible for lay litigants, then they must have meant lay litigants with law degrees. The Wellington Courts Committee say from Council Brief

"Pleading under the new Rules Committee members have found the prescribed forms that stand in for pleadings under the new system to be very much worse than the old system. The forms are long, repetitious, and difficult to fill out. They do not match each point of the claim with the reply by the defence and so make it harder to identify what is actually in issue. Compared to the exchange of pleadings from previous practice, the forms are slower, and more cumbersome to prepare. They fail to define the core issues in dispute. The additional complication increases expense."

I think the form preparation was captured by Justice staff without any practical experience. What ever was wrong with statements of claim and defence? The issue was not the forms but the gaming, and these new forms must confuse the majority. I could design better forms in a few hours work, although they didn't ask me....
Seriously, there are real problems with the levels of complication. The Disputes Tribunal forms on the other hand are simple and easy to use, and I am increasingly impressed with the rapid and fair approach of this part of the system They are not bogged down with the forms and complex procedure, but just get on with the job. I think Judge Peter Spiller has done a great job of moving the Tribunal into the 21st century, but the new District Court Rules take us back to Jarndyce v Jarndyce.

Thursday, 14 October 2010


I have just been given a copy of Geoff Adlam's new history of legal publisher Brookers. This is a fascinating story of how the publisher began with its unique system for annotating statutes. That may not necessarily inspire the reader into picking up the book, but it is rather the soap opera of the early Broker and Friend families which could be the subject of a text of its own. One does not think of legal publishing as any more than a somewhat arid and academic industry, but in fact it does seem to draw in the eccentric and the colourful. This is worth reading so find a copy-or try There are only limited copies apparently. Brookers very kindly sent me one, but I would have admired the book anyway. They also have a tradition of hospitality which includes a good pinot noir.