"We have maintained a silence closely resembling stupidity" - Neil Roberts

Until we have legislation adopted into law to ensure fiduciary accountability and transparency in public affairs we will continue to have human rights breached because the existing crown immunity and lack of any independent oversight invites corruption to flourish.


"Question authority, and think for yourself" - Timothy Leary


"We have maintained a silence closely resembling stupidity" - Neil Roberts


"Information is the currency of democracy" - Thomas Jefferson


‎"Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever does." - Margaret Mead

"The truth is like a lion, you don't have to defend it. Let it loose, it will defend itself."

"I = m c 2 [squared] where "I" am information" - Timothy Leary

"Ring the bells that still can ring, forget your perfect offering, there's a crack in everything, that's how the light gets in." Leonard Cohen

"The internet is a TV that watches you"

Sunday, June 23, 2019

Shortcomings of the Harmful Digital Communications Act:


The following Minute has been issued by the Court regarding civil proceedings against the writer under the Harmful Digital Communications Act:


ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES

IN THE DISTRICT COURT AT HAWERA

                           BETWEEN    L  
                                                  Applicant


                            and                R
                                                  Defendant


  
                   Date:                      18 June 2019

MINUTE OF JUDGE G P BARKLE
[1]   [the Applicant] has filed two documents with the Hawera Court in respect of this matter.
[2]   The first is dated 29 April 2019 and is addressed directly to Judge Rowe.
His Honour issued an oral judgment in respect of the proceeding on 18 April 2019.
[the Applicant] raises concern that Ministry of Justice staff had not effected service on [the Defendant] by 1 May 2019 in accordance with the directions of Judge Rowe.
[3]   I am advised by the Hawera District Court registry that the documents were sent to the service document team of the Ministry of Justice on the first working day after Judge Rowe's decision, that was Tuesday 23 April 2019 due to the Easter break. On 30 April 2019, the registry was advised by the service document team that personal service on [the Defendant] has not been effected. Judge Rowe was emailed that advice with a request that substituted service be considered.
[4] Judge Rowe issued directions for substituted service on 2 May 2019. In accordance with His Honour's directions the defendant was served by email at 4.18 pm on 2 May 2019 and advised by text message at the same time. I note   [the Defendant] filed her notice of opposition on 10 May 2019.
[5] There has not been any change to the date of hearing set by Judge Rowe and the telephone conference allocated by His Honour took place in accordance with the direction made.
[6] Next, [the Applicant] seeks to have an amicus curiae appointed to assist her with the proceedings. She states that she does not have a lawyer and requires legal representation. [the Applicant] refers to it being a person's right to have such assistance to access justice and refers to herself having multiple chronic permanent physical health issues. She refers to the application being made in reliance on the New Zealand Bill of Rights Act and the convention for people with disabilities.  [the Applicant] states that the Taranaki Community Law Trust cannot assist her due to heavy workload and she has not been able to secure a lawyer by other means.
[7]   In Erwood v Holmes the role of an amicus curiae in the civil jurisdiction was clarified. [1] Justice Moore noted that the "counsel assisting the Court" nomenclature is now preferred. That is the language employed in r 10.27 District Court Rules 2014 which provides:
10.27 Counsel assisting
At the request of the court, the Solicitor-General must appoint counsel to appear and be heard as counsel assisting the court.
  Justice Moore referred to the decision of Beneficial Owners of Whangaruru
Whakaturia (No 4) v Warin in which the Court of Appeal stated: [2]
What is true of all amici, however, is that they are not parties. They are appointed at the discretion of the court and the extent to which they may file documents and present legal argument is at the discretion of the Court.
[9]   Counsel assisting the Court will usually be appointed where there is a danger that an important and difficult point of law will require a determination without having been the focus of argument before the Court.
[10]                     The role of counsel to assist the Court is demonstrated in the decision of Justice Moore by the Judge setting out a non-exhaustive list of examples of when they are appointed that emphasise the core nature of the role and its primary purpose to assist the Court rather than the parties to the litigation. Those purposes include:
(a)               Cases where important issues may arise for determination, but where a party to the proceedings has chosen not to participate.
(b)              Cases where an issue is raised as likely to affect the interests of a sector or society which is not party to the proceedings.
(c)               Cases involving complex issues of human rights or international law.
(d)              Cases involving confidential information which cannot be disclosed to a defendant or their counsel.
  His Honour stated that• [3]
Counsel to assist should not be appointed where the primary purpose is to help a party when they are unable or unwilling to access a lawyer to represent them, this includes when the party has had legal aid refused to them.
[12]                     The High Court stated that funding is at the expense of the public and as such the Court must hesitate before it appoints counsel to assist where "the purpose of the appointment is primarily to streamline the case of a self-represented litigant in private litigation. "4
[13]                       [the Applicant] has initiated the proceedings under the Harmful Digital Communications Act 2015 ("the Act") on her own behalf. The documentation satisfied His Honour Judge Rowe that interim orders in her favour should be made.
  [the Applicant] has since filed further affidavit evidence and this application seeking appointment of counsel to assist the Court. While the documents are in her own handwriting, they exhibit an ability to understand the requirements of the Act.   [the Applicant] does not indicate whether she has applied for legal aid. The defendant, […], is currently self-represented.
[14]                     In my determination, none of the criteria that are set out in Erwood v Holmes are satisfied. Even though the High Court did not suggest that the list was an exhaustive one, nevertheless, I am not persuaded that the circumstances of this litigation nor of [the Applicant] personally requiring appointment of an amicus curiae.
[15]                     Accordingly, I decline the application of [the Applicant].
G P Barkle
District Court Judge


[1] Erwoodv Holmes [2017] NZHC 1278.
[2] Beneficial Owners ofWhangaruru Whakaturia (No 4) v Warin [2009] NZCA 60 at [21].
[3] Erwoodv Holmes above n 1 at [40]. 4 n I at [58].

_________________________________________

The magnitude of the many and various ironies of this matter will become apparent in due course.