JUDICIAL MISCONDUCT AND MASS HUMAN RIGHTS VIOLATIONS, CONSPIRING TO OBSTRUCT JUSTICE AND DISCRIMINATE AGAINST AUSTRALIANS IN NEW ZEALAND
The most restrictive and obstructive s166 order imposed by New Zealand against one litigant, unheard, unopposed.
Court that made the decision: Court Of Appeal- however issued by High Court Judge Justice Osborne, in what appears to be an extra judicial step.
No: [2024] NZCA 683
Date of decision: 19 December 2024
The specific grounds of the proposed appeal are:
The breach of natural justice of Justice Brewer issuing an s166 order without any hearing has been ignored with the court falsifying a narrative that due to the appellant providing written submissions she consented to a decision being made without a hearing which was NOT accurate.
The general s166 relied on 7 separate matters, of which the legal merit was ignored- most obviously in the first example with a decision of Justice Fitzgerald disregarding MANDATORY legislation of CPA 2011, S26(2) as proven by the precedent decision of [2022]NZCA477 with Justice Katz in the appellants favour on an identical point of law.
At the time of the appeal on 16 May 2024, a decision of Justice Brewer ruling in the appellants favour on an identical point of law in a decision she consented to be dealt with on the papers was available on 15 May 2024, in her favour which was withheld from the appellant and the courts. CIV-2024-404-300 D v Northshore District Court & Ors
Not publicly available
The submissions of the “intervener” were inadmissible exceeding a 25 page limit without leave of the court PRIOR to filing, as per R40E(4) COAR 2005 as such can not be accepted let alone relied on by the Court Of Appeal.
"(4) The Registrar must reject a synopsis if it is longer than 25 pages and is presented for filing without the prior leave of a Judge."
?Justice Courtney was the ONLY court of appeal judge on the panel of three who issued a minute on 27 August 2024 alleging the reason for delaying the appellants rights to justice for a decision in a reasonable time frame was waiting on a decision of a “permanent Court of Appeal panel” which was not yet in existence. CA387/2022?[2024] NZCA 435 issued 11 september 2024 Raising further questions of prejudicial bias of judges relying on peer opinions over questions of law and inconsistencies more justly dealt with by way of s7 and s7A of NZBORA 1990 for parliament to determine the question of law democratically and not by virtue of judicial dictatorship.
The original judges listed for the appeal were: Justice Thomas, Justice Fitzgerald and Justice Osborne. Both Justice Thomas and Fitzgerald secretly recused themselves for the appeal on 16 May 2024 BUT were present for the appeal on the second half of the day at the same court. NO FORMAL RECUSAL DECISIONS OR REASONS WERE PROVIDED FOR THIS “JUDGE JUGGLING” Which the court was aware of and denied, a further breach of natural justice and due process placing the reputation of justice into disrepute. This is verified in paragraph [124]:
Recusal Background
[124] This appeal was originally scheduled to be heard by a Divisional Court constituted by Thomas, Fitzgerald and Osborne JJ. Thomas and Fitzgerald JJ, being the former Chief Judge High Court at the time Brewer J made the s 166 order and the current Chief Judge High Court respectively, recused themselves from hearing the appeal. Courtney and Mander JJ were allocated in their stead.
?This fact was denied and concealed from the Chief Court of Appeal Judge HH Justice Cooper in a formal minute- thus implicated in judicial misconduct. The recusals MUST be issued with the reasons and all judges implicated in this judicial misconduct MUST appear before a disciplinary tribunal/ discussion panel in OPEN court for the appellant to seek their removal from office or appropriate redress by the Attorney General for public safety.
It is?Important to note the judicial bias in obstructing the appellants right to have a support person appear via AVL BUT allowing Justice Mander to appear by AVL who was subsequently unable to accept the documents offered up to the court by the appellant due to his location not physically present in court at the appeal hearing.
?The appellants right to have her father attend the hearing as a support person was obstructed by Justice Courtney extrajudicially imposing restraints on a support person alleging they “must appear in person” going further to impose her opinion that no support person attending via AVL could offer any support. THIS IS NOT LAWFUL and directly contradicts Judge Ruths direction to recuse himself on the identical basis in a matter of Jessie Clark v NZ Police.
On 27/08/24 09:26, chdctrials wrote:
Good morning both,
I have spoken to the Judge presiding for the pre-trial argument, Judge Ruth. He has recused himself from presiding over this matter on the basis that he refused the application for MacKenzie friend, it would be inappropriate for him to preside over any case involving Mr Clark.
It is not a judges role to obstruct a persons right to a support person which in this instance amounts to an act of prohibited discrimination under s21 HRA 1993 on the basis the appellant is Australian and her father is based in Australia unable to attend a hearing in person to support her.
Justice Osborne issuing a decision of a court he is NOT a member of renders the decision “null and void” as it breaches the Court Of Appeal Rules 2005 as stated in: r49 of the act:
?(c) any 2 Judges of the Court (whether or not members of the Court that heard the appeal) may, at the delivery time, deliver the judgment on behalf of the Court:
?The judges who are?members of the court?of appeal?are listed publicly and Justice Osborne unfortunately, is not one of them: https://www.courtsofnz.govt.nz/the-courts/court-of-appeal/judges/
?There is a further “issue” with perceived conflict of interest and actual bias with Justice Osborne and Justice Mander both judges of 2x Habeas Corpus applications heard on 6/11/2023 with neither judge granting leave to appeal obstructing those appeals- one case unopposed, the other filed de novo- both obstructed unjustly without the appellants right to challenge the courts “convenience” and “usual practice” over MANDATORY legislation as per s3 and s9 of the Habeas Corpus Act 2001 with further case law of 2017 by Justice Foggarty confirming writs can and HAVE been issued by the Auckland High Court in Family Court proceedings. Rendering the obstruction of the appellants cases in err and factually inaccurate.
With the Court of Appeal judge, her honour justice Courtney making a direction no further submissions could be filed by the appellant or accepted by the court, not imposing the same restriction on the “intervener” was in breach of natural justice- an identical matter of law determined in Justice Harlands decision on 7 September 2021
[2021] NZHC 2326
D V N and Manukau Family Court
[95] Further, the orders specifically in relation to D’s ability to interact with the Registry are problematic, even if, as the Judge notes, her interactions have been “overwhelming for the registry”.?It is unclear where the jurisdiction to make such an order is found, but if there is jurisdiction to do so, the person who is the subject such orders, in this case D, should be given an opportunity to be heard in relation to them. This did not happen here. To this extent there was a breach of natural justice."
?The court of appeal extra judicially expands the scope of the appeal to exploit unrelated “family court proceedings” to conceal the decision of which the initial s166 order did not- therefor any mention of the decision under appeal or publishing in accordance with s14 NZBORA 1990 would automatically be in breach of the very suppression orders the court has imposed which are irrational and “doomed to fail”
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF PROCEEDINGS UNDER THOSE ACTS MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURT ACT 1980. NOTE: HIGH COURT ORDER IN [2021] NZHC 2080 PROHIBTING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES TO FAMILY COURT PROCEEDINGS.
The court alleges to “rely on the background” on baseless grounds of giving context to “context and volume” without any volume of cases mentioned!
[36] We refer to this background both because it gives context to the content and volume of Ms D’s litigation in the senior courts and because it is directly relevant to several of the candidate proceedings. For some of the candidate proceedings considered by Brewer J, which we consider from [44] below, the August 2020 Family Court decision informs the analysis of whether the proceeding was totally without merit. It is also relevant to whether the Judge’s discretion was appropriately exercised to make the civil restraint order.
The court summarizes the final orders of Judge Admas, omitting he extra judicially imposed an unending/ indefinite non removal order detaining two Australian children in New Zealand, that both children are Australian citizens AND that as New Zealand has not ratified the 1996 Child convention Australia had jurisdiction to hear Hague proceedings for the childrens RETURN TO THEIR HOME AND COUNTRY OF BIRTH/ HABITUAL RESIIDENCE IMMEDIATELY BEFORE THEIR ABDUCTION OR RETENTION- As per article 5 from HCCH - Hague Conference on Private International Law
Article 5
(1) The judicial or administrative authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child's person or property.
(2) Subject to Article 7, in case of a change of the child's habitual residence to another Contracting State, the authorities of the State of the new habitual residence have jurisdiction
This has been a significant miscarriage of justice that no amount of time “takes care of” nor can be excused as “historic” the 7 years of child abuse and isolation in breach of the childrens rights compounds the gravity of offending and extra judicial errors in what has in effect assisted a child abuser and DV offender with the abduction of two Australian children.
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[35] Judge Adams ruled against the children’s relocation to Australia and ordered the children should be in the shared care and control of the parties on a week-about basis.
It is contradictory for the senior court act to state ONLY the general restraint of an s166 order can be made on the application of the Attorney General, yet override that with “but a judge can make whatever order they want without adhering to this section” THAT IS A MATTER FOR PARLIAMENT TO CLARIFY and not for judges to exploit without parliamentary confirmation- a further “inconsistency” of the act with Human Rights:
[37] Ms D noted the Attorney-General had not applied for a general order under s 169(2) of the Act, which provides “[o]nly the Attorney-General may apply for a general order”. She submitted there was therefore no statutory basis upon which the Judge could make a general order.
[38] Ms D’s argument misconstrues s 169(1)–(3) of the Act. Subsections (1) and (2) identify who may make applications for particular types of order. Subsection (3) expressly allows a judge of the High Court to make any of the three 36 August 2020 Family Court decision, above n 34, at [66(c)–(d)]. forms of order “either on application … or on his or her own initiative”.
The appellant raises concerns of the courts deliberate distortion of legislation and refusal to correct an obvious error such as s15 of the CPA 2011 clearly stating any person has a RIGHT to bring private prosecution- This is distorted in para 57 of the decision.
[57] On the third ground, the Judge recorded Ms D had not clearly stated why she said Judge Johns had an improper purpose. Ms D had pleaded separate court proceedings had also been refused for filing which had left her with no option but to list matters in the “Criminal District Court” in January 2020, that being the attempt declined by Judge Johns. “against [her] rights under s 25 of the Criminal Procedure Act”. Whether other documents were rightly or wrongly refused for filing was not relevant to the decision under review. In any event, the timing requirements for filing charging documents under s 25 of the Criminal Procedure Act did not provide Ms D with a “right” to file charging documents in a private prosecution.
It is disturbing and of serious concern for judges to disclose openly their prejudicial bias to know a proceeding is bound to fail without even hearing a case, regardless of the legal merit and exploit this prejudice as grounds to breach a persons right to justice: This is inconsistent with the NZBORA 1990 s9, s18, s19 and s27 which requires parliament to lawfully determine how this will be regulated to avoid judicial abuse.
[19] Section 167 speaks of proceedings being “totally without merit”. In Mawhinney, this Court, following an extensive review of the legislative history and the English jurisprudence, held a proceeding is “totally without merit” if it is bound to fail. It was further observed a proceeding is either bound to fail or is not.
It is concerning for Judges to acknowledge Justice Brewer erred in his “meritless findings” ?as cited in para [117]
[117] In these circumstances, we conclude Brewer J erred in finding the second judicial review application was totally without merit.
yet the Court has gone to extreme lengths to support this “finding” in the body of the decision, notwithstanding the court accepted some of Brewer Js "alleged findings" to justify the threshold for two. If a litigant conducted their case the same way it would be disregarded as a "phishing expedition" insufficient to justify a trial.
The exercise of the discretion The judgment
[118] Brewer J, having found all six candidate proceedings were totally without merit, turned to the exercise of his discretion. While we have found that one of those six candidate proceedings was not totally without merit, the threshold of two proceedings was well-exceeded and it is the exercise of the discretion that must then be considered. ?
The appellant submits if a Judge has erred in a finding by way of error of law, fact procedure or in this instance, all three elements- especially when the finding was made in breach of natural justice and due process the entire decision MUST be quashed or set aside so as to preserve public confidence in the judicial system to be seen to be acting fairly and consistently.
It is unacceptable for all judges implicated in this judicial misconduct and miscarriage of justice to allege to be in any "impartial position" to comment on what a FULLY INFORMED and fair minded observer may or may not raise concern with, such as Justice Osborne declaring (biasedly) he has no issues with his own conduct before, during and after the hearing.
This requires parliamentary regulation to prevent “secret recusals” and obstructed recusals” with Judges relying on a precedent of Saxmere which only came to light AFTER a judge denied obvious conflicts, resulting in his recusal AFTER the hearing due to financial records being provided.
Recusal of Osborne J
[129] Ms D’s concerns with Osborne J relate to the hearing. She identifies three key issues:
a) Justice Osborne attempting to coerce me to agree that simply by responding to a decision with written submissions, I agreed to waive my right to be heard on the matters before JUSTICE Brewer.
b) Threatening the appellant in their open submissions to have to respond to Crown counsels (unacceptable synopsis) that the lawyer for child was protected from suit- framing criminal offending as “acting in her clients best interests” telling the appellant when they said they would get to that “no you won’t have time, its already 11:10 so you will not get to respond to this later."
c) Openly coaching Crown Counsel, David Neild, to allegedly make a submission regarding judicial immunity which, in fact JUSTICE OSBORNE made the submission regarding “THE STATUTE” falsley alleging this was "Crowns submissions."
[130] It is routine for judges to ask questions of those appearing before them. Asking questions during a hearing cannot be considered grounds for recusal. Nor does reminding a party of the time constraints in a hearing.
[131] The application in relation to Osborne J did not suggest any real possibility that in the eyes of a fair-minded and fully informed observer Osborne J might not be impartial in reaching a decision on the appeal.
?It is necessary in the interests of justice for the Supreme Court to hear and determine the proposed appeal because Section 74?of the Senior Courts Act 2016 provides as follows:
(2) It is necessary in the interests of justice for the Supreme Court to hear and determine a proposed appeal on the grounds that:
(a) the appeal involves a matter of general or public importance; [as per the jurisdiction of the court to disregard mandatory legislation and impose restraints without a hearing and disregard binding precedents including [2022] NZCA477 IN THE APPELLANTS FAVOUR ON AN IDENTICAL POINT OF LAW IN THE FIRST “MERITLESS” DECISION OF JUSTICE FITZGERALD regarding an obstructed criminal prosecution in breach of s26(2) CPA 2011.
(b) a substantial miscarriage of justice has occurred as per the s166 order being imposed without a hearing in breach of natural justice, in addition to what appears to be a judicial defamation campaign to conceal mass breaches of human rights by concealing facts and points of law the courts are bound to uphold and state accurately in decisions.
(c) the appeal involves a matter of general commercial significance, as seen with Vincent Siemers cases [2024] NZCA 435, https://jade.io/article/1106656 whereby a Judgment was delayed waiting for a decision not yet in existence from another matter “of a permanent court”, issued on 11 September 2024 a ?High Court Judge (Justice Osborne) appears to have exceeded jurisdiction issuing a decision on behalf of the Court Of Appeal of which he is not a judge of.
The appellant has sought a direction accepting the appeal on the grounds an obvious miscarriage of justice has occurred.
A declaration the Court of Appeal Judges erred in their conspiring to disregard due process for recusal process and have damaged the publics’ confidence in the judicial system for this misconduct requiring the referral to the Attorney general and JCC for a disciplinary panel of ALL judges implicated including: Justice Osborne J, Justice Mander, Justice Courtney, Justice Thomas, Justice Fitzgerald, Justice Cooper , Justice French who failed to address the urgent memorandum.
A declaration that Justice Cooper of the Court of appeal committed an act of misconduct denying the recusal of two judges from a panel of 3 which has now been disclosed in the judgment of the court of appeal judges.
A declaration the court of Appeal erred in their judgement and have exceeded their jurisdiction to impose their interpretation of the law without questions of law and consistency with mandatory legislation being clarified by Parliament under s7 and s7A of the NZBORA 1990. https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html
A declaration Justice Osborne has exceeded his jurisdiction as a High Court judge to issue a decision only Court of Appeal judges have the jurisdiction to issue as per COAR 2005, r49.
A direction to quash the decision of 19 December 2024 and quash the s166 order as unlawful made extra judicially in breach of the appellants right to be heard and matters to be heard in open court for a fair and lawful outcome.
A direction for all matters obstructed by exploiting the s166 be directed to be heard in court at the next available time tabling (now in excess of 83 separate matters) - prioritising the 16 matters remitted to the high court in decision [2023] NZCA25 issued to remit 17 cases back to the High Court after the first unlawful s166 order imposed by Kit Toogood was “set aside” [as unlawful without any end date.] on 14 Feb 2023.
Costs and disbursements for all obstructed proceedings of the appellant since the first 17 cases were remitted from COA to HC on 14/02/2023 with only 1 case ever heard- which the appellant was successful in CIV-2022- -404-1376 - Justice Anderson. Costs should include damages for the public defamation of the appellant and her business as a result of this s166 decision and the extra judicial conduct to conceal facts and MANDATORY legislation from the decision having several people including lawyers discredit the appellant as having “meritless” proceedings.
This application is filed within time, subject only to the exploitation of High Court Judges failing to “grant leave” for my RIGHT to appeal in breach of s27 NZBORA 1990.- AS PER THE 2 X WRIT OF HABEAS CORPUS MATTERS HEARD ON 6/11/2023 (Also featuring two of the same judges in the current appeal Osborne J and Mander J) CA586/2023 and CA605/2023.
WHEN WILL THE GOVERNMENT REGULATE UNLAWFUL JUDICIAL MISCONDUCT- ACTING ABOVE THE LAW, THREATENING DEMOCRACY AND PUBLIC CONFIDENCE IN THE GOVERNMENT?
(*If the public acted as the judiciary is- it would arguably be declared an act of terrorism or treason)