Government against the people

judge's gavel

The question arises, m’lud, of costs

Unaffordable justice is not justice.

But before payment ever becomes an issue, the very availability of a Court of law is vital, for it guarantees that the ordinary citizen may have his grievances examined by a disinterested judge. We shouldn’t underestimate the power of the unperturbed mind to resolve disputes, remedy wrongs and instil peace; it’s fair to say that nothing else can.

The significance of the Court’s availability increases with the increasing power of one’s adversary, until the adversary is the Crown itself, when the importance of an open Court surpasses everything. For in battling the Crown or the State one stands to lose everything, the combat is so unequal. Only the judge stands between the citizen and the Crown. Outside the courtroom the citizen would be crushed without thought, but before the judge the agent of the Crown will discover that he meets an equal — and shares similar standing with the citizen.

So an accessible Court is the last restraint on the unhindered power of the government turned against its citizens. If the Courts were completely to fail, only blogs such as this would stand, rather forlornly, perhaps, as the last cudgel of democracy; the last gasp of reason before the absolutely final, desperate step to take up weapons and man the barricades around the Parliament, the Kremlin, Tiananmen Square or the Bastille.

Such a failure of democracy itself further fails democracy, and takes the present possibilities much too far, but it serves to show the value of these public discussions — core principle is never very far away.

The existence of a free Court is as important today as ever. From the English barons united against the hubris of the king in the 13th century to the industrial iniquities of Dickens in the 19th to the increasingly Dickensian iniquities of today, two hundred years later, the existence of a reliable spring of reason lies at the heart of our love for a wise and satisfying country.

The Court’s disinterest must be manifest as much in its judgement of costs as in its assessment of the matter in dispute, since it prices the justice it dispenses, and for the Court merely to be available (though that be priceless) is not enough: to keep this justice in reach of the ordinary citizen the Court must be accessible at an affordable cost or its doors might as well be padlocked.

Why such fulmination? Because NIWA, a government agency, has become overbearing in responding to our challenge to their temperature record. NIWA starts by exaggerating the costs of its defence.

We’ll show ’em

The NZ Climate Science Education Trust (the Trust, or NZCSET), as regular readers know, asked the High Court to review certain decisions of the National Institute of Water and Atmospheric Research Ltd (NIWA) in producing the national temperature record and therefore to set the record aside. During a three-day hearing in July the court found against the Trust. Now the issue of costs arises, for part of Justice Venning’s decision was “The defendant is entitled to costs.”

NIWA has reported to the Court that their costs were $118,000, but that’s 50% above the normal scale. Why? It’s nothing less than a punishment, and the crime, of course, is daring to challenge the government. Whistle-blowers aren’t welcome with NIWA. They can pursue tobacco barons to within an inch of the law, or let them investigate fracking, or lunge at the throat of the Ministry of Social Development for breaches of privacy, but don’t you dare ask reasonable questions of us or suggest we perhaps should use a properly accepted scientific method of adjusting temperatures.

In its Court pleadings NIWA’s scientists claimed through their lawyers they are the final arbiters of the science they use and nobody can tell them what to do. I happen to agree that they should have that right, subject only to the usual journal-borne scientific challenge and verification, but when they adopt that attitude in their relationship with society it becomes no more than hubris and they turn from useful scientists into something unattractive. How unpleasant they become when a disagreeable, bureaucratic arrogance makes them take up strong-arm tactics against honest citizens.

Let’s punish someone

But NIWA goes further than that. It actually names two individuals who, it claims, should personally pay the $118,000 – and they weren’t even parties to the court case. Terry Dunleavy is the honorary secretary of the NZ Climate Science Coalition and Barry Brill is the chairman of the Coalition, and a lawyer, who helped bring the court case.

It’s a scandal, because the parties, of course, were the NZCSET and NIWA. No individuals were involved on either side.

The principle NIWA is resorting to here is known as a “non-party costs order” and although the concept of non-party costs has been developed in recent years for cases of companies in receivership, it has never been applied to a judicial review case. It is believed to be the first time non-party costs orders have been sought by an agency of the New Zealand Government or any other government in the Commonwealth.

We tried to talk, NIWA chose the Court

The Trust sent all its criticisms (140 pages worth) to NIWA over a year ago. We offered to co-operate fully with any enquiry NIWA’s chairman might initiate. We prescribed no restrictions and made no demands. You can’t get fairer than that.

But NIWA ignored us, refused to answer our questions and insisted on going to Court. They can scarcely claim that we dragged them all unwilling to Court after ignoring our questions for more than a year.

The Trust argues that costs shouldn’t be awarded at all, because the case was taken in the public interest. There is no question of pecuniary gain. Even NIWA don’t suggest that somehow the Coalition could get some financial reward from winning. So there are no grounds there to award costs against the Trust.

The Courts have regularly upheld “the watchdog principle”. They say it’s appropriate for responsible lobby groups to test decisions taken by an arm of the executive government, for example, in the 1999 case of Greenpeace v Minister of Health.

Environmental lobbies such as Greenpeace and the Forest & Bird Society are regular litigants in both the Environment Court and the High Court, but because they seldom seek pecuniary gain they regularly benefit from the rule. The NZCSET is in the same category, even if its quest for truth in climate science might currently be a little less fashionable.

This is the same rationale as the new law allowing protection for whistleblowers.

Government throwing weight around

With a now-characteristic arrogance, NIWA opposes the Court applying the watchdog principle. It bristles with indignation that any group, at any time, should question its decisions. It not only demands the full costs allowed, but even asks for a surcharge of 50% – presumably to put the “deniers” in their place. It all smacks of an overbearing Government agency throwing its weight around.

Curiously, NIWA says the case did not concern climate change, but only whether NIWA had made mistakes in manipulating raw temperature data. Contrast this with the view of the NZ Herald editorial of 17 September:

“If the coalition had managed to discredit Niwa’s methods, it would also have discredited the evidence for climate change, and the part played by human activities.”

So when responsible private groups make inquiries of government agencies, are rebuffed and forced to seek answers in Court, the Courts generally look kindly on them when making orders for costs.

They take the view that government agencies generally should be required to account for their actions and if no other avenue is available then it’s perfectly appropriate and acceptable to use the Courts.

David v Goliath

In this case we have a tiny charitable trust fighting manfully against the huge resources of the New Zealand government. Long ago, the Courts evolved the notion that costs would not generally be awarded against a plaintiff bringing a case purely in the public interest, unless pecuniary profit is also involved. That principle is now enshrined in the High Court Rules.

If the case had succeeded, the Court would have ruled that NIWA has over-stated the warming experienced in New Zealand to date, and therefore the warming predicted for the next 100 years. That lower prediction would mean that we don’t have to spend billions on climate change mitigation and adaptation, and we don’t need an ETS. Everybody would be financially better off and the worriers could stop worrying. What could be more in the public interest than that?

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