Farrar only blames the judge

David Farrar has posted at Kiwiblog again on the court order that disrupted this site a couple of weekends ago – Judge got it wrong on HDCA.

Amazingly the Judge did not realise the provisions of the Harmful Digital Communications Act which he relied on, were not to come into force for a couple of years.

I’m shocked a Judge would make such a wide ranging order, and not even have properly read the Act to realise most of it was not in force yet.

Comments on that post show that while the judge was ultimately responsible and allowed a mistake to go through he rectified it as soon as he  was aware of the problem.

Comments also do what Farrar didn’t, they pointed out the incompetence (at best) of person or persons involved in the court order, Marc Spring by the look of things with the assistance of Dermot Nottingham.

Here’s some of the comments, by people with obvious legal backgrounds.

In the Hager decision, the High Court made it plain that all relevant information, both factual and legal should be placed before a Judge who is considering an application made without notice to the other side.

A number of things should have been made clear to the Judge by the applicant. First, the Act under which the order was obtained was not yet in force. Second, the order requiring YourNZ to appoint a moderator was not available under the Act in any event. Third, there was no reason why George should not have been served with the application and given the opportunity to be heard. Presumably none of this was advised to the Judge. If that was done in the knowledge that the grounds did not exist, it seems a clear attempt to pervert the course of justice. If not, it says something about the legal skills of the applicant.

It is also a worry that a Judge, faced with a lay litigant invoking novel powers to abrogate the right to freedom of speech, should grant such an order without checking that he was able to do what he was being asked.

That is a worry.

The District Court Judge, Gary Harrison, is well respected by his colleagues and has a solid pedigree in law dating all the way back to being Justice Mahons assistant in the Erebus Inquiry. Clearly he had a bad day and dropped the ball but it is to his credit to have acted quickly to withdraw his decision when he realised the facts and law, as presented, were quite wrong.

Sounds fair.

Seems the lawyer who sought the order needs to be hauled up before a disciplinary committee. The lawyer is as much to blame as the judge for the foul-up, indeed significantly more so. This is even more so in an ex-parte application (where the judge makes a decision without hearing from the other party because of urgency etc). In such a case the person seeking the application is obliged to put all relevant stuff before the judge, not just the stuff that aids the application.

Litigants do not like the other party spouting off publically about matters before the court and judges tend to side with this. I possibly see the original judge’s ruling as being to in aid of stopping public disclosure of matters concerning the case. This could also explain why the judge is reluctant to release the papers concerning this to the other party. Perhaps the judge is being excessively sensitive about this or may have real concerns.

Except that in this case it was the litigants who spouted off publicly about matters they had put before the court.

I assumed that the order was applied for by a litigant in person. If it was a lawyer who made the application it is serious misconduct. The Judge in making any order under that Act is supposed to give a written decision; it would have been interesting to see that but I suppose that as the Act was not even in force, there is no need for the Judge to comply with it.

There’s been no indication a lawyer was involved. Why wouldn’t it  still be serious misconduct for a lay litigant?

Well, either that or apparent negligence (if we are going to be slightly charitable about it).  If there was a lawyer on either side then the judge should have been told.  If there were no lawyers involved then we get to whether the judge checked that the legislation was in force!

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball.

And:

Making an application for an order that is unavailable under an act that is not in force without notice to the other side when that person is readily available and there is no apparent serious risk of harm? Negligent is a more than charitable description. It is at best appalling incompetence and at worst an attempt to pervert the course of justice. Assuming, of course, that a lawyer was involved. If not, then the judge really dropped the ball

And:

Yup, it is up there.

However, I think he will realise that and he will be kicking himself.

In his defence he might have relied on the supporting memorandum from the applicant and decided not to go behind it to check his jurisdiction under the enabling act.

And:

I had assumed that the person was represented and that it was a High Court proceeding. A High Court judge would have a ‘clerk’ (generally a junior lawyer) to check out these things. A District Court judge may not have had such assistance and so bears the onus of having to verify things but in practice often has to rely on memory or instinct or he/she would not get anything done.. A District Court judge would not have the time to reflect on things that a High Court judge would.

It was District Court.

Interesting comments.

Ultimately it was the judge’s responsibility as he signed the court order. But the appalling stuff ups,  either through incompetence or a deliberate attempt to pervert the course of justice, seem to have been due to the actions of non-lawyers. One way or another they seem to have tried to con the court.

I don’t know why David Farrar only blamed the judge.

Leave a comment

10 Comments

  1. Farmerpete

     /  19th December 2015

    If the applicant represented him or herself and he/she misrepresented the situation it is up to the judge to give this proper scrutiny and make sure the application reaches the proper standards. I am with Farrer on this. There are appropriate penalties for misrepresentation but this gaffe was so big, it is entirely the responsibility of the judge.
    Litigants make mistakes and errors in law every day. Judges are there to ensure proper process is followed.

    Reply
    • Mike C

       /  20th December 2015

      @FarmerPete

      Wasn’t Judge Harrison attacked by the Litigants in their Blog a while back?

      It seems odd to me that this Judge didn’t hear alarm bells ringing when he read the names of the people involved in writing the rubbish in the application against George.

      Reply
      • FarmerPete

         /  20th December 2015

        I didn’t see that. My comments were driven purely on where I felt responsibility lay. If he had seen them then that should have raised a flag!
        Cheers.

        Reply
  2. Alan Wilkinson

     /  19th December 2015

    I suspect that if all the paperwork was publicly available the legal criticisms would be even more severe. Let alone the evidence that the applicants spent,so much time harassing PG and the blog as well as trying to seed it with stuff to complain about before lodging the application. Cockroaches all.

    Reply
    • If they try another legal stunt on this it would at least provide an opportunity for the whole story to be presented to a court. And I would make sure everything comes out, not just their made up claims.

      Reply
  3. I am disappointed to see that Farrar still seems to be in WO’s corner, or is it just being careful not to poke the bear. The bizarre but vexatious attacks on PG from the litigants and WO have been nothing short of appalling. Am I surprised to see Farrar not even touching on the ethics of this? I had him picked as better. Perhaps buried bodies might be more of an imperative than loyalty. 😃Farrar never blogs on issues unhelpful to his meme. A surprise then he even commented.

    Reply
    • Mike C

       /  20th December 2015

      @Traveller

      Yeap … something definitely smells fishy in Farrar-Land 🙂

      Three things have made me very curious about Farrar recently … which are:-

      1. He works with Williams at the TPU
      2. He lets Slater write lies in kiwiblog
      3. He is in with Slater on that “Incite”

      Reply
      • Alan Wilkinson

         /  20th December 2015

        He censored Slater eventually. To be fair, his moderation is usually slow rather than instant so it may have been as soon as he read it.

        Reply
  4. kittycatkin

     /  19th December 2015

    I must say that I was really expecting the Court Order to be a fake.

    One doesn’t know whether to hope they do something like it again and make idiots of themselves or not.

    Reply
  1. More misuse of Harmful Digital Publications Act? | Your NZ

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