Howard's End: Justice In Error Is Justice Denied
Just how bad can our justice and courts' system be when the Privy Council is overturning Court of Appeal decisions, the High Court doesn't tell people about their right to appeal or how to appeal a judgment, and the District Court in the ACC jurisdiction is not following the Practice Note issued by the Chief District Court judge. Maree Howard writes.
The Courts and Justice system in this country need an urgent overhaul, and fast, when the the basic fundamentals of a free democracy - a right to justice and a fair trial - is being so consistently violated.
Fortunately, the NZ Law Commission is taking a hard look at our Court's structure and how user-friendly it is, but they aren't expected to report until October and then it will likely be many more months before any recommendations are implemented.
In the meantime, the woman who started the Gisborne cervical cancer inquiry is now heading back to court in November for a retrial of her exemplary damages claim against retired pathologist, Dr Michael Bottrill.
She lost her first claim in 1999, but the High Court judge granted a retrial in 2000. The Court of Appeal then overturned the retrial decision, but the Privy Council reinstated it last year.
But the Court of Appeal in another case in 2002, relying on the Bottrill case, said that failure to take reasonable care by itself, can never justify an award of exemplary damages.
It said the remedy is only available, quoting page 638 of Bottrill, "where the defendant is subjectively aware of the risk to which his or her conduct exposes the plaintiff."
The Privy Council rejected that finding by our top judges.
There have been three further cases in recent weeks where the Privay Council has also overturned the decisions of our Court of Appeal.
In just one, Wellington businessman Sir Robert Jones, spent over $200,000 to take his traffic violation to the Privy Council who overturned the decision of the Court of Appeal.
$200,000? - how on earth could the ordinary person seeking justice afford that? But good on Bob Jones, he's done us all a big favour in placing "the system" under the public spotlight.
Scoop is also aware of a recent High Court judgment taken by a person who could not afford a lawyer.
When the judgment was given there were no rights to appeal advised by the High Court, or how to appeal. The person simply received the judgment by fax three weeks ago and, to this day, has not even received a hard copy.
The person contacted the High Court registry and asked the person in charge of the civil section if there was an eligibility to appeal, how that might be done, and in what time-frame.
They were told that the High Court doesn't provided that information and they should seek legal advice.
Pardon!!! Scoop has since discovered that there is 21 days to appeal.
Because the person was not told, they are now out of time to lodge an appeal. So whose fault is that?
Seek legal advice? Excuse me! - The person was in the High Court struggling by themself, in a completely user-unfriendly environment and without ready availability to the Court processes, because they couldn't afford a lawyer.
And what's more, how does a person get access to justice at a higher level if they are not told how to do so or what their rights are?
The Justice and Court system is clearly loaded against, and unfriendly to, all ordinary New Zealander's. There appears to be no level playing field and equality before the law in this country. Court's Minister Rick Barker ought to take a hard look and quickly.
Then there's the District Court Practice Note issue.
According to the Practice Note issued by the Chief District Court Judge in September 2001, a person lodging an appeal in the ACC jurisdiction of the District Court is supposed to be contacted by the Court registry and arrangements made about an exchange of submissions, an agreed bundle of documents to be presented by the parties at the hearing, the time it may take in the Court, and whether the appeal can be heard on the papers instead of in the Court itself.
That makes good sense because an appeal may involve matters of a minor nature and not need to waste scare Court time and resources from a full hearing.
Does that all happen - Nah! The person is advised of a court hearing date and about an exchange of submissions.
The rest is ignored with the consequence that a person who cannot afford a lawyer, and is already medically impaired through their injury, faces the judge and an opposing lawyer, and has a huge bundle of documents dumped on them on the day.
It's an ambush and no way in this world can it be said to be a fair trial – yet It is allowed to happen.
It's also been recently discovered that a person wishing to appeal an ACC District Court judgment to the High Court must come up with $750 as security for costs if the District Court decides that the appeal can proceed.
If it proceeds there's also the costs and processes of the High Court that the person must meet, and come to terms with.
Picture this scenario. A person has had their weekly compensation taken from them, they go to the District Court on appeal but lose. The person (or the person's lawyer) thinks the judge has made a hash of the law and wants to appeal - $750 please.
But hang on they've got no money - does this mean no money, no justice.
Legal Aid? - sure, if you are lucky enough to find a lawyer these days who wants to become involved in the red-tape of the legal aid system. Scoop knows of lawyers who won't touch legal aid with a barge-pole.
Scoop took some of these matters up with the NZ Law Commission by email who treated the email as a submission to the inquiry they are doing into the way our Court and justice system is operating and how user- unfriendly it might be.
Scoop understands the Law Commission plans to report and make recommendations to government around October but a lot more injustices will be created in the meantime.
Meanwhile the "justice" system is like a giant jaw with the bureaucracy and lawyers the top jaw, the judges and their processes the bottom jaw - and the ordinary person being mashed-up in between.
It's a national disgrace.
Scoop reckons the Chief Justice should get out-and-around the public more often and tell us how our justice system works - or ought to work.
They do it in other countries with top judges even appearing on television life-style and radio programmes.
Scoop understands the Chief Justice attends dinners for the various legal Bar Associations and talks to lawyers. So why not also talk to us ordinary people? - after all, the law is addressed to "We the people" and the Justice system is ours - isn't it?