Gary Judd KC: No jurisdiction for Supreme Court MACA 'judgment'

Earlier today, The Capital Letter, New Zealand’s review of administration, legislation and law, published my article explaining why the Supreme Court had no jurisdiction to deliver its so called “Judgment of the Court.” Put in less formal terms, the Court had no power to do what it did. I addressed the same issue in SUPREME COURT INTO THE POLITICAL ARENA AGAIN, but at greater length and with a focus on what the government and Parliament should do. This later, shorter article focuses on what the Supreme Court itself should do.

On 2 December, the Supreme Court issued what it called "Judgment of the Court" in the Edwards case ([2024] NZSC 164), on the extremely contentious Marine and Coastal Area (Takutai Moana) Act 2011 (MACA).

The so-called "judgment" was made without jurisdiction. An appeal is made against a "decision" of the Court of Appeal: Senior Courts Act 2016 (SCA), s 68.

Decision means "a judgment, decree, order, direction, or determination:" Supreme Court Rules 2004, r 3. The Supreme Court may make any order or grant any relief that could have been made or granted by the court appealed from: SCA, s 79(1)(a).

The jurisdiction of a court lies in its authority to decide, not in the mode of decision or the manner in which the court's powers may have been exercised. That was decided in Nakhla v McCarthy [1978] 1 NZLR 291 where the Court of Appeal also said:

"….The formal judgment of a court and its reasons for arriving at that judgment are different things. The judgment of the court was that the appeal should be dismissed".

We pause to remark that altogether apart from that authoritative statement of principle by this court there can be no doubt whatever concerning its correctness. The casual and convenient use by lawyers of the word "judgment" to refer to both reasons and determination may tend sometimes to obscure the distinction which is properly emphasised by the last two sentences of the foregoing extract from the memorandum. The operative judicial act is the formal answer given to the question before the court and that answer or determination is, in the true sense, its judgment. 

Neither the Court of Appeal nor the Supreme Court has jurisdiction to make a decision about the lower court's reasons for decision. See the Supreme Court's decision Arbuthnot v Chief Executive of the Department of Work and Income [2008] 1 NZLR 1, at [25], and the Court of Appeal's decisions FB Duvall Ltd v Commissioner of Inland Revenue [2009] NZCA 413, [3], [6]-[7], Gao v Body Corporate 183930 [2016] NZAR 1313, [2016] NZCA 458, [17], [20]-[23], [34].

In Edwards, the Court of Appeal ([2023] NZCA 504) concluded:

[446]  The approach to s 58 outlined above leads us to the same result as that set out in the judgment of Miller J. As already mentioned, we agree with the orders he proposes.

[447]  The applications for CMT recognition orders over the area covered by Orders 1 and 3 in the High Court should be reheard in the High Court in light of the approach set out above.

Orders

• (A)The Edwards appeal is dismissed, as are those of Kutarere Marae and Ngāti Muriwai. For reasons given at [281], this does not preclude Ngāti Muriwai from participating in any recognition order for customary marine title (CMT) granted, following rehearing, to the Whakatōhea applicant groups.

• (B)The appeals of Te Ūpokorehe, Ngāti Awa and the Landowners Coalition Inc are allowed in part. CMT Orders 1 and 3 are set aside. LCI's appeal against CMT Order 2 is dismissed.

• (C)The cross-appeals of Te Kāhui and Ngāi Tai are dismissed so far as they seek a recognition order for CMT over the common marine and coastal area around Whakaari and Te Paepae o Aotea.

• (D)Te Kāhui's cross-appeal is allowed in part. CMT may extend to the beds of navigable rivers which form part of the common marine and coastal area as MACA defines that term.

• (E)We order a rehearing of the applications for CMT recognition orders over the area covered by Orders 1 and 3. The rehearing will not extend to the common marine and coastal area around Whakaari and Te Paepae o Aotea.

• (F)The appeal of Ngāti Ruatakenga against the granting of recognition orders for protected customary rights (PCR) to Ngāti Muriwai is dismissed.

• (G)The appeal of Ngāti Patumoana against the refusal to grant a recognition order for PCRs is allowed to the extent set out at [350]. The form of the orders is to be settled in the High Court.

• (H)Costs will lie where they fall.

The Court of Appeal's decision was contained in [447]. As [446] shows, the approach to s 58 was a reason for the decision.

Yet, the Supreme Court said: "[227] The appeal by the Attorney-General in relation to s 58 of MACA is allowed." There is no indication the Attorney-General made an appeal "in relation to s 58." If the Attorney-General had done so, the appeal would have been invalid.

The question which was and still is before the Supreme Court is whether the judgment of the Court of Appeal set out in paragraph [447] was correct. That was the approved question (17 April 2024, [2024] NZSC 33). It was not dealt with. It is to be dealt with in a second judgment. In paragraph [5], the Supreme Court said it was going to issue two judgments, but it gave no reason for approaching the matter in that way.

The Supreme Court's action is of great concern. The circumstances have brought New Zealand one step closer to the constitutional crisis New Zealand Initiative chair Roger Partridge described as "looming" in his report "Who makes the law? Reining in the Supreme Court".

The Supreme Court's "judgment" of 228 paragraphs was issued just 17 days after the conclusion of an eight-day hearing involving numerous parties on a complex matter. The "judgment" failed to do what the Court was empowered to do, deliver a decision on the correctness of the judgment of the Court of Appeal, and instead it did something it was not empowered to do.

Pre-empting legislation

There is before the House a bill to amend MACA which includes overruling the Court of Appeal's decision on the meaning of s 58 - see the bill's preamble. A consequence of the Supreme Court's "judgment" is the claim now made by some that the amendment Bill is unnecessary, because the Supreme Court has reversed the Court of Appeal's interpretation of s 58.

It hasn't. It disagreed with aspects of the Court of Appeal's reasoning in a discursive and opaque manner leaving ample scope for the Supreme Court to decide however it wants when it gets round to delivering a decision. There is no way of knowing the real effect of the Supreme Court's discussions about s 58 until they have been applied to the facts.

The inescapable conclusion is that the Supreme Court was attempting to pre-empt the Bill's enactment.

That again exposes the Supreme Court as politically active. A failure to maintain its proper position within the constitutional order undermines its credibility and accelerates the looming constitutional crisis.

What is to be done?

As a pronouncement made without jurisdiction, the pronouncement of 2 December should be treated as a nullity.

As the Supreme Court is New Zealand's final court of appeal, only two remedies are available. One is for Parliament to declare the purported judgment to be a nullity. The other is for the Supreme Court to accept its error and to set aside its "judgment."

The Government could introduce a Supplementary Order Paper at the bill's Committee stage, to declare the Court's 2 December pronouncement to be a nullity and to require the Court to decide the appeals in accordance with the law stated in what will be the Amendment Act.

It would be far better, however, and would go some way towards restoring the Supreme Court's tattered credibility, for the Court to accept responsibility for its actions and to set aside its purported judgment as made without jurisdiction.

The House of Lords, in Re Pinochet, accepted that a final court of appeal must have jurisdiction to set aside its orders if improperly made since there is no other court which could do so. The same applies to our Supreme Court.

In the MACA case, the Supreme Court should set aside: "[227] The appeal by the Attorney-General in relation to s 58 of MACA is allowed," as it was a pronouncement made without jurisdiction and was therefore improper.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.