Leading QC Criticises Supreme Court

One of New Zealand's leading barrister, James Farmer QC, has levelled some serious criticism at New Zealand's highest Court, saying it has produced "reasonably unexceptional" judgments in terms of their outcome and has helped create both uncertainty and confusion in the law.

Dr Farmer is widely respected for his work in antitrust and commercial cases, both in New Zealand and Australia. He was president of the New Zealand Bar Association from 1991 until 1995 and from 2004 until 2008 and has lectured and written on commercial law and other matters.

Writing on his own website, (www.jamesfarmerqc.co.nz) Dr Farmer, regarded as New Zealand's leading QC, has criticised the Court for its judgment in the Commerce Commission v. Telecom (0867 case) saying the commercial community was entitled to "much better principled guidance than we received in the short Judgment.”

The manner in which the court dealt with competition issues in the case was "superficial", he said.

"I think I am entitled to endorse the views of many others practising in this important area of law and policy that we were entitled to much better principled guidance than we received in the short Judgment that was delivered. Giving guidance and certainty on issues of public importance is, after all, part of the raison d’etre for the Court. The claim that New Zealand and Australian law on what constitutes taking advantage of market power are now in harmony will simply not withstand analysis."

Dr Farmer also criticised the decision in Morse, which involved the Supreme Court overturning the three lower courts' decision in respect of a charge of offensive behaviour against a protester who burnt the New Zealand flag before veterans on Anzac Day.

The judgment received widespread publicity and condemnation from many commentators.

Dr Farmer writes about the decision: "…it is hard to suppress a cry for the injection of some homely common sense and a far greater degree of sensitivity for those who were offended. If the law really be that there must be a danger of some degree of public disorder before the offence is committed, then Ms. Morse must count herself lucky that she was arrested so swiftly and that she therefore was able, through her counsel, to take part in an arid legal debate in the highest court of the land rather than face what must have been the inevitable wrath of the 5000 strong crowd of those attending the ceremony and wishing to pay respect to the dead.

"Ms Morse can surely also count herself lucky that the Court was so tolerant of her counsel’s decision at trial not to cross examine witnesses whose evidence, on any reasonable view, would have supported a conviction, even on the Supreme Court’s more stringent test of offensive conduct. And whether she was entitled to have the benefit of the Court’s discretion not to order a retrial is another question upon which there will be other views."

ENDS

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