A legal academic to look out for

Opinion

Stephen Franks

Canterbury University dean of law Dr Chris Gallivan

Should St Bedes’ baggage carousel riders have been stood down? Was the punishment proportional? Should the parents have let their kids face the music? What kind of lesson are kids getting when lawyers protect them from their school’s view of conduct?

A wise academic from Canterbury has identified bad lawyering and judging as the real villains in this drama, and had the courage now unusual in legal circles, to say it clearly. the TV3 News website quotes Canterbury University dean of law Dr Chris Gallivan as saying – “It undermines the authority of the school and it makes the courts look bad, it makes lawyers look bad and it makes the parents look bad. It undermines the authority of the school.”

The judge in the case may have had little alternative but to grant the interim injunction that meant the school effectively lost. Though she appears to share the views of appeal court judges (on their right and duty to fine tune the ‘proportionality’ of decisions by lay citizens) senior judges’ appeal decisions may not have left her much room to move. Proportionality is a fashionable doctrine that conveniently justifies  an infinite range of second guessing of others’ decisions.

In the clamour of views on the case Dr Gallavin’s are the only ones I’ve seen from a lawyer that essentially focuses on the feeble judging that has created the dilemma that tempted the parents. It is unfair to blame the parents when judges have created a situation in which a parent could blame themselves for failing to stick up for their child, irrespective of the bad outcomes for schools generally. The judges should have been guarding others, and they’ve failed repeatedly.

There is plenty of public recognition that schools and teachers everywhere are now tormented by choices between bad and worse - should they draw sharp behavioural boundaries, where what matters most is certainty of authority, with the ‘correctness’ or ‘proportionality’ of an individual decision being of secondary importance, or is it better just to fudge issues and let ‘mercy’ reign because the risks and costs of a fight with lawyers are just too great.

The fault lies with arrogant judging. Those responsible do not feel arrogant. They think they do good by indulging the universal human wish to look compassionate. But it is arrogant all the same. Judges who feel free to satisfy their urge to tinker with decisions retrospectively, irrespective of the costs have delivered us into the clutches of long delayed decisions, timorous authority, sensible people who simply stay away from public service, from taking school teams anywhere risky. Judges who think that achieving the ‘right’ outcome in the case before them is a judicial duty and privilege, forget their responsibility to the rule of law. Their art should always be subject to the questions - ’but what will this do to the law – what lesson/message/rule/precedent does it propound for the thousands who look to the particular cases for guidance on how they will be treated”. Will people now know in advance whether they are on the right side of the law, or the wrong? Can people now work without routine recourse to lawyers? What practical message will be the ‘rule of lore’ conclusion from this judgment.

It should have been simple. The consequences of teachers uncertain of their authority are far worse, for all parties, than the loss of a sports event for two boys.

Perhaps too many judges who try to apply the rule of law perspective  are without the mental furniture to do so dynamically. That is they fail to work through the consequences far enough to see how they affect the incentives facing the just and the prudent, as well as the unjust. But too often they do not appear to think they even need to try.

Watch out for Dr Gallavin. He is worth listening to.

Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.


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The High court has effectively told new Zealand that there are no consequences for the actions of the children of those who can aford judicial review, their children can do as they like at school unlike the rest. The Courts exist so the wealthy can do as they like. The judicial system is broken.

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Looks like not only is justice blind (which is conventionally acceptable), the judgement is also myopic and bereft of wisdom. Perhaps now we can claim that we have the best justice that money can buy.

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Good article Stephen. I have read the Court's decision and agree that there is a lack of focus on the public interest and rule of law aspects of this matter in the Justice's reasoning. Also, the circumstances of this matter effectively render the "interim" injunction a permanent order in favour of the applicant, and in my view the Justice should have been more cognisant of this. It is no surprise that this claim has now been settled - the "interim" injunction effectively scuttled any reason for St Bedes to continue to oppose. No injunction should ever be lightly granted.

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I agree wholeheartedly with Stephen Franks' comments. Judges must resist the temptation to become 'people pleasers'. It's easy to take the feel-good route of standing up for the little guy, the individual who is up against an institution or deep pockets. But courts are not there merely to empower (fashionable concept) a badly behaving individual in his right to stick it to a party of greater power. Decisions like the St Bedes' case reverberate across and down society, changing the tone and thinking.

There is more at stake here than just whether the school, in the judge's opinion, got it just right. There is the huge question of just how litigious we are prepared for our community to become. If we can all litigate every decision of another, common sense and good judgement become supplanted by myriad rules. It's one or the other. We devolve towards a more bureaucracy-based society where innovators and good people become more less ready to act. Risk-aversion replaces innovation and entrepreneurship. Frankly (sorry), no one should be able to become a judge via the path of school, university, law practice and the bench. There should be 5 years out there at the coal face (perhaps working on a fishing boat) before the last step. Five years' waste of a good brain? No, the making of one.

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With the two students name out in the media I hope they are blacklisted for any jobs once they leave school - some organisations will have them on a no hire list - no doubt Daddy will give them a job though

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What a mean-spirited comment. Have you recently been a judge on X Factor?

I hate to think what your proposed punishment would be for more serious crimes of personal injury or worse.

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As I understand it, both the parents in question, and their sons, signed or agreed to tournament rules that any child who misbehaved could be sent home. The two boys in question committed an act which was not only stupid and potentially dangerous, but one which was also clearly illegal. The penalty was appropriate.

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It has been obvious for some time that our judiciary has lost the plot. Wise and appropriate counsel and decision making has been lacking for a considerable number of years. Time for a review?

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The case was frivolous and vexatious and the judge should have dismissed the application on those grounds. Yet again we have the judiciary indulging themselves in social engineering dressed up as the law.

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Read this the other day - there's now a new standard of poverty in Christchurch - a school kid whose parents are unable to afford buying High Court Justice...

I guess if political parties can be brought like they so easily can be on the Political Left - witness last General Election - and the politicians make the laws that the judiciary then deciphers - it's no wonder favourable judicial outcomes can now be leveraged with a large enough cheque book...

Or, at least that's the perception... and we all know about perception being reality...

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I disagree. The decision to stand them down and send them home was taken on the basis of one hearsay account, without getting the boys' side of the story, or that of the police or aviation officials. Natural justice should apply to school disciplinary decisions just as in other areas of human endeavour. Barring them from competing had long-term consequences because it prevented them from being eligible to qualify for NZ selection and potentially the world championships (or some such, I am writing from memory). It affected their future careers, not just one event. (That is something that I did not know until I read the judgment itself.) The judge made her decision on the basis that the harm to the boys could not be repaired if, on fuller investigation, it turned out that the school was wrong. The school simply applied an existing policy without considering whether there were exceptional circumstances that made a different decision preferable; and it didn't get the boys' side of the story or even identify why the authorities had decided not to charge them. A couple of phone calls would have made the difference. It is a salutary lesson to anyone exercising authority, to remember to be fair.

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No - your viewpoint leads us to the position we have today where the wealthy and the high flyers in society are shielded and protected by the law.

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Good article by Stephen, and this is equally good, for balance, thanks Cheryl.

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it is time that judges have their performance reviewed. they are clearly breaching the separation between the legislative and judiciary. they now want to make laws. a contract had been signed and breached. the amount of decisions that are over=ruled by another judges are staggering. in a normal workplace mistakes like this are not acceptable. It is time to review the judiciary, their scope and their performance... there are too many judges that think they are above the law .

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It is disheartening to see that much of the opinion overlooks the main issue, namely whether a public law decision making process must accord due fairness to the individuals concerned. As a lawyer trained overseas I must say that the average Kiwi (including lawyers and government officials) do not seem to have much concern about these things. In recent years I have won more judicial reviews than any other lawyer, bar none, and can say that fortunately the High Court generally takes the higher ground. These young men were not treated with even the semblance of fairness and that was the primary issue, not the political meandering that others (that do not understand judicial review) would like the case towards. Good on Justice Dunningham for doing her job to preserve the rule of law and protect individuals from abuse by those in power. Those who criticise may one day have to beg the Court for protection themselves and will see things in a different light then.

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