No courage to remedy gross injustice

Yet a grandiloquent pronouncement is a hard and courageous act

Anthony Grant, an Auckland barrister and trustee, specialising in trusts and estates has written Opportunity lost: the Supreme Court leaves a gross injustice unremedied, for the Law Association’s LawNews.

A deceased, Robert, during his life physically, sexually and emotionally abused his children, and he hid his estate so his children could not get access to it. I won’t go into the legal complexities, but I did think that Anthony made a highly pertinent observation when he said:

The judges in the Supreme Court can announce major developments about the applicability of a third legal regime in New Zealand – tikanga – which is essentially unknown to the legal profession and the community, but they cannot work out how to modify the law concerning fiduciary obligations that will redress “great wrongs” that “it is not possible to overstate”.

The decision, distilled to its essence, can be summarised in three simple statements:

• the wrongs that were committed were about as terrible as can be imagined and deserve a remedy;

• the existing law does not provide an appropriate remedy; and

• the judges in our highest court are not capable of devising an appropriate remedy.

And it took almost a year and a half for them to reach that conclusion.

In KCs are not a special elite, I quoted former Australian High Court Justice Michael Kirby:

There have always been in the law, as in life, Dixons and Dennings. The expositors of settled doctrine. The reformers who push doctrine forward: inventing new categories, reformulating concepts, extending the frontiers, advancing with an energy derived from the perceived needs of justice. Different ages tend to produce, and to elevate to the ascendancy, judges whose inclinations are akin to those of Dixon or those of Denning. That is why we see, in an historical review of the history of the common law, periods of creativity and energy; often followed by longer periods of consolidation and complacency.

LORD DENNING AND JUDICIAL ACTIVISM

According to the Chief Justice in a report of a webinar, What it takes to become a judge, “Another characteristic that I think is absolutely essential is courage, because judges take the hard decisions in society. That is literally what the courts are. They’re the places where the decisions in society that can’t be worked out in other ways are taken, and they’re taken by the judge.”

Yet our Supreme Court could not push doctrine forward and extend the frontiers, to meet the needs of justice in a case which was crying out for justice. It is a proper role of the courts incrementally, case by case to develop the law where that is needed for a just decision in the case under decision. The case of the abused children was such a case. But not for our Supreme Court. Whilst happy to be ‘courageous’ in taking the ‘hard decision’ to decide tikanga was part of our law in a case where it was completely unnecessary to make any decision about tikanga at all, the courage to make a finding which would have provided justice for the abused children was lacking. It was just too, too hard.