Damien Grant: Horses for wrong courses

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There is disquiet in the legal community about a small number of key precedent-making decisions. Photo / Thinkstock
There is disquiet in the legal community about a small number of key precedent-making decisions. Photo / Thinkstock

I was in the capital last week, in the Court of Appeal as the president of that august body berated my lawyer for my many sins.

It was not the first time I've run afoul of the courts and I am sure it will not be the last. I am not a lawyer so I am not bound by conventions of decorum that constrain members of that profession.

High Court judges are civil servants taking home $385,000 a year. For that level of cash the public have a right to expect a high level of service and, mostly, we get what we pay for. Still, there is disquiet in the legal and commercial community about a small number of key precedent-making decisions. Many blame this uneven performance on the policy of judges being generalists.

In an unconstrained outburst last week, Dr Tom Molloy QC blasted this practice: "How would you like your brain surgery done by a gynaecologist or by an orthopaedic surgeon?" he ranted to the NBR magazine.

Lawyers specialise, Molloy pointed out, yet when they become judges preside over areas they lack expertise in.

"For the so-called justice system to charge daily hearing fees for judges so badly mismatched to the cases in hand is fraudulent."

Attorney-General Chris Finlayson suggested Molloy return his Queen's Counsel warrant. I am unsure why Finlayson is upset. He made his career suing the Crown on behalf of Ngai Tahu and, as Treaty Minister, seems intent on completing the task.

Case law matters. Bad judgments create economic uncertainty, impose costs on business and drive parties into unnecessary litigation.

The Law Commission is tackling the issue. It notes that there are advantages to a generalist approach when the pool of available judges is small and that the judiciary prefers the status quo, which seems destined to remain in place.

This is a shame. Molloy resorting to such caustic language reflects the frustration many feel. They are simply too reasonable and professional to say so out loud.

- Herald on Sunday

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