The High Court at Auckland. Scene of some famous trials.
Unmannerly enmity from Grimes
Gareth Renowden (or, as I picture him, Grimes the shambling truffle grubber) puts poison to his pen once again. His target, again, is the NZ Climate Science Coalition (the coalition), this time in the person of our chairman, the Hon Barry Brill, and the NZ Climate Science Education Trust (CSET).
In an abandonment of proper sceptical debate Grimes is destitute of reason, good sense and evidence.
Grimes the STG says: “despite initiating the legal case and orchestrating the trust’s attempts to avoid meeting its liabilities,” Barry Brill “is flying off to Las Vegas to speak at the latest climate crank networking event organised by far-right US lobby group the Heartland Institute.”
Well, so he is; he paid his fares, paid his fees and off he shortly flies. The suggestion that “Brill’s travel expenses are likely to have been funded by Heartland” is a fantasy, for I asked him and he said they’re not—and if they had been, what of it?
There is no “despite,” for nothing connects the legal case with the conference or its costs except Grimes’ over-eager spleen. His libellous title trumpets “Brill’s bills still unpaid” even though Mr Brill has nothing to pay, no matter how earnestly Grimes wishes that he had. But he immediately admits that Judge Venning ordered costs against the trust, not against Barry. So it can’t be a mistake, his title tells outright lies—which I suppose at least ensures consistency with his text.
The incendiary reference to “the trust’s attempts to avoid meeting its liabilities” I will address shortly.
Grimes makes a spiteful search for deceit among our innocent arrangements, to wit:
Did Sissons represent the CSET pro bono? On the face of it, that seems unlikely. If he did not, was he paid by Brill, the trustees or a third party, and why was that not recorded by the Trust as expenditure on their activities?
Well, not at all unlikely, Grimes, you’re wrong again, for Terry Sissons readily assures me that he did indeed represent the CSET pro bono; let it go, Grimes—however much it pains you. Even if Mr Sissons had been paid by a benefactor, whether recorded in the trust’s books or not, what business is it of yours?
Grimes blathers on with his repugnantly hollow insinuations, contends the liquidator’s report “raises serious questions about the way that the case was funded” (as though acts of charity are now prohibited) and blithely claims “the evidence is damning” without suggesting an offence for which he might be damned. What an empty head he has.
He makes an excursion into Bryan Leyland’s comments, concluding: “Either Leyland was misleading the Sunday Star Times, or he was misleading the official liquidator.” How about citing what Leyland actually told the liquidators, Grimes? How else are we to judge his statements misleading? You’re making stuff up. This is unpersuasive nonsense, especially as “large” has no standard definition—the fees Barry Brill paid are readily described as large.
Grimes’ insalubrious craving to find fault in us doesn’t just overreach the evidence—it invents evidence.
Expense of justice means justice denied
It might surprise you to know (and it will certainly surprise Grimes) that the coalition tried very hard to avoid court proceedings. For example, we asked NIWA for documents under the Official Information Act but they gave us nothing. Six times we wrote to the chairman of NIWA urging an investigation and offering to meet. Why did Chris Mace refuse to meet with us?
We prepared lengthy and detailed formal documents (like the Audit) and forwarded them to NIWA’s chairman and lawyers seeking reactions. Nobody answered us. Why did Chris Mace refuse to talk to us?
Incredibly, and to what must be NIWA’s undying shame, it finally dawned on us that they had no record of the national temperature series (7SS) or what went into it, and they didn’t understand it. That’s why they gave us no documents describing what lay behind this important piece of public science. Losing work funded by taxpayers is the most disgraceful incompetence.
Grimes has never grasped the fact that before the coalition could file the suit against NIWA it had to create the CSET to comply with the law. It would have made the judge seriously angry had we brought a suit in the High Court on behalf of something that doesn’t exist. The unincorporated coalition is a mixed grouping without formal structure. No regular meetings, no elections, and so on.
Grimes would have us believe that the trust was nothing but a knavish trick by the coalition to cheat the taxpayer out of their rightful coin should the judge order costs against it. But the very law itself required it of us. Grimes must have missed my previous explanation of this in 2012, and this.
NIWA gave up the chance of security
For the love of reason, Grimes, renounce this false and preposterous accusation “that the CSET was formed … as a cover to protect the litigants from the financial consequences of failure.”
Then go talk to a lawyer, to whom it stands out plainly: If NIWA had been concerned about the trust’s ability to meet a costs order it could have applied for security for costs in advance of the hearing. It clearly failed to do this.
So NIWA applied to the court to appoint a liquidator to examine the trust’s accounts. Now Grimes whines that the liquidator’s report “makes it obvious that the CSET was formed with the express intention of bringing the court action.” (Yes!) It’s taken him a long time, but let us hope he’s finally got it.
So we’re ‘avoiding liabilities’ are we? We’ve certainly complied with the law, and we can’t be blamed simply for not being wealthy, as far as I know. But let’s examine that huge liability of about $90,000 for costs.
NIWA’s high-handed attitude
First, negotiations to settle the case were scuttled by NIWA insisting on a legally-enforceable covenant that the trustees and solicitor for the trust must never again criticise NIWA’s scientific methods or even raise questions about them, in any forum. That proposed gag order must be a new high-water mark for lack of accountability by public servants. I want to amplify and justify this important aspect soon.
Second, cloaking a crown enterprise in the garb of a company—a commercial entity—may seem to be a good idea. It enables staff to be employed in a completely commercial way, on normal terms and conditions and at normal salary levels. So the enterprise can get the best people the market can provide. Able to negotiate on its own account with suppliers and customers alike, it will obtain the best deals available.
But there are two important drawbacks.
- The staff, though public servants in all but name, are exempt from conventional rules of public service conduct.
- The responsible minister, representing the government as the real owner, is divorced from day-to-day running of the ‘company’ and has no power to compel the board either to reprimand the staff or direct them to act as he requires.
Thus modern public servants gain a convenient shelter from those who question their work. The failure of various of its ministers to control these powerful NIWA scientists and require of them a compliance with basic courtesy in dealing with the public should have rung alarm bells in Wellington since about November 2009 (when we published Are we feeling warmer yet?).
Any beneficiary with a $350 problem with WINZ can make use of its dispute resolution process. Whatever’s required in the way of evidence, professional advice or even counselling is made available to every naïve citizen who has fallen afoul of some process or principle of our welfare system. Similar facilities are widely available in other government departments. To emphasise that public services are meant for the service of the public, the Official Information Act declares information must be more readily released than withheld.
That seems not to be the case with Crown enterprises. NIWA chose to retain very expensive legal advisers rather than face the irritating consequences of details of a) the national temperature record or b) the laxity of NIWA scientists in handling the national temperature record from reaching the public domain.
Our case against NIWA was not decided on its merits but on technicalities like the qualifications of witnesses, interpretation of the duties of Crown enterprises and the principle (erroneously applied in parts of this case) of courts eschewing judgement in scientific matters. The substance of our suit, which was the accuracy of NIWA’s adjustments, went all unheeded—regardless of Grimes’ crowing our ‘defeat’.
Costs artificially inflated
This dispute was necessarily conducted, imperfectly and to nobody’s satisfaction, in a court of law, simply because NIWA is not obliged to set up a dispute resolution service such as WINZ has done and chose just to keep saying ‘no’. Nobody came forward to prevent this and even the judge would not stand against them.
Thus when the time came for the judge to award costs, they were astronomically higher than they needed to be. All because NIWA simply refused our simple requests for information.
Note that their general manager, their board and their chairman are impotent to compel out-of-control NIWA managers and scientists to act reasonably. Why would they want to keep these temperature details secret and why should they be permitted to? But their senior management thought it a good idea, and it seems even the two ministers holding the NIWA reins, Bill English and Steven Joyce, cannot control them either.
Grimes claims our duty is to pay the costs, but NIWA inflated them beyond all expectation by employing top lawyers. Had we been dealing with WINZ (for all its faults, still a genuine public service), it would have borne the costs, because it accepts that answering legitimate queries is its duty. It would not have punished bona fide applicants merely for disputing.
NIWA might engage expensive legal teams to repel disputants (rather than simply answering their embarrassing questions) and nobody disputes their right to spend ‘their’ money like that, but once costs have been awarded, suddenly it’s public money we’re making off with, turning us into knaves and scoundrels. This is not reality but an enchanted castle. Or a disenchanted one.
NIWA can use public funds to employ top-notch lawyers to protect its staff and conceal its activities from the public it serves. What it does and what it knows can be hidden behind a veil of “commercial sensitivity” even when it’s clearly in the national interest to be disclosed, such as the national temperature record and the adjustments made to it.
Coalition scientists work part-time with no compensation, and what they achieved is remarkable—they forced NIWA to recreate the national temperature record. They achieved this with careful mathematical work and made full disclosure of their work.
On the other hand, NIWA is a public department with a multi-million dollar budget. It works behind a commercial stockade to keep critics out and spend taxpayer’s money in huge amounts to duck its responsibilities when it wants to. It performs public service science but it pretends to be a private company.
That’s a disguise not many people have identified. But identified or not, it still hides what NIWA scientists are up to and it shields them from the wrath of the public and even their own ministers.
We are minnows, NIWA is an orca
Ask what it’s hiding, Grimes!
Grimes/Renowden ends with a statement of Barry Brill’s “stupid, self-serving and politically-motivated legal action.”
On stupid: tell us what adjustment method NIWA used, Gareth.
On self-serving: tell us the selfishness in paying the application fees and sticking his neck out—it was courageous.
On politically-motivated: tell us what the motive was.