The Third Estate in a democracy is a judiciary, free from political or other bias. It is their role to interpret law and apply it ‘without fear or favour’. Various people who should know better have recently referred to Parliament as “the highest court in the land.”
In a democracy Parliament is not the highest court in the land; it is not a court at all and should never be thought of – let alone used – as one.
When push comes to shove and trials or hearings begin I have always found the drama intriguing. I like a good argument and have even been known to engage in a few myself. So, forgoing work of more practical purpose it was a treat to head towards the courts in Whangarei last week to attend a hearing – the Kaipara commissioners application to ‘strike out’ the Mangawhai Residents and Ratepayers Association’s application for a judicial review.
There are many who think that a judicial review should have been initiated by the commissioners. Who better fitted to give an independent ruling – the government and the Auditor General (both of whom are suspected of negligence that contributed to the demise of our council) or the judiciary who are the public’s independent specialists?
Given that the costs of the judicial review are being borne by an independent group, why not let it run its course? The commissioners, in a move reminiscent of the old council, elected to spend $150,000 in legal fees to argue that a judicial review should not proceed.
With the recognition of friends and neighbours there was a picnic atmosphere as we filed into the court building. Rather than city slickers picnicking in the great outdoors, country folk instead commandeered the top floor of the Whangarei courthouse. Security was evident and busy. We were ushered through a metal detection device. Predictably, no explosive-belted pensioners or weapon-wielding terrorists were identified. They even let me through. TV cameras were about and I gave a short interview to a bright young thing from 1ZB who had a phone so smart it was positively clever.
Due to lack of appropriate press credentials I was herded with other human overflow from the main courtroom to be accommodated next door with a live video link – a group watching daytime reality television but without the ads. We struggled with the volume while awaiting Justice Paul Heath and the commencement of proceedings.
In response to some joke or other QC David Goddard, barrister for the applicant commissioners, laughed long and loud. I thought a little nervously and perhaps intemperately for a member of the proverbially stern and sober legal profession. I wondered, was he thinking of the difficult propositions he must soon put forward or $150,000 legal fees paid for him to do so. For the next two hours and 55 minutes he attempted to convince the court that too much time had elapsed since the actions to be reviewed occurred and, that a judicial review could not serve any practical purpose. He had done some homework and cited case history and precedent from as far afield as England. None though seemed to be applicable to the particular circumstances at hand. I thought he was on dodgy ground arguing that there was no practical purpose to the judicial review. There are those that insist the courts themselves serve no practical purpose. But this proposition is unlikely to convince those whose livelihoods depend upon it.
When Justice Heath asked questions, put forward propositions or cited points of law there was some hesitation and he often appeared at a loss for a cohesive argument. His performance, though a good one, was for me, unconvincing. I am glad I am not party to paying his fee. At $150,000 I think it a little overpriced. I will not be nominating him for an Oscar.
As the court adjourned for lunch my stomach rumbled to some practical purpose. The afternoon would contain a counter argument from the MRRA’s legal counsel as to why the review should proceed. I am familiar with the points that would be raised. From what I had seen the argument to strike out the judicial review had already proved so tenuous as to be ineffectual. I felt convinced that the application would be denied. Would sticking around serve any practical purpose? Will a judicial review serve any practical purpose? Does the analysis and judgment of what is legal and what is illegal, what is right and what is wrong, what is permissible and what is intolerable, and what is honest and what is deceitful serve any practical purpose? It’s a tough one isn’t it? And for now the jury of the public, as well as Judge Heath, is still out.
I left the court, ate a late lunch with a friend, took care of a couple of small jobs and an errand, checked my email, played squash, drank beer and yarned with friends and neighbours, and fed the pigs. All done with much practical purpose.
“…I was herded with other human overflow from the main courtroom to be accommodated next door with a live video link – a group watching daytime reality television but without the ads. We struggled with the volume while awaiting Justice Paul Heath and the commencement of proceedings.”