This case has a grain of the serious in it alongside the extremely bizarre bit of it that I'm going to post, in that the main character obtained a second appeal and the dismissal of certain convictions by launching a wave of principally civil litigation against various parties that he alleged to have contributed to his conviction. The Attorney-General then applied to have him declared a vexatious litigant, this is one of the decisions in that proceeding which summarises the history of the matter nicely. The alleged crimes are pretty horrible as is the possible miscarriage of justice so this is perhaps better filed under the heading of odd rather than amusing.
"
The facts
[3] This is a most unusual case. The Attorney-General applied under what is now s 88B of the Judicature Act 1908 for an order that no civil proceeding should be issued by Mr Palmer without leave of the High Court because he was a vexatious litigant. At the time of our interim judgment, reported in [2005] NZAR 46, Mr Palmer was serving a sentence of preventive detention following convictions after jury verdicts in this Court at Auckland on two counts of sexual violation. He had previously been convicted in this Court at Rotorua on two lesser sexual charges. His appeal to the Court of Appeal had been dismissed, as had his subsequent application to the Governor-General under s 406 of the Crimes Act 1961 for the exercise of the Royal prerogative of mercy by referring the convictions to the Court of Appeal.
[4] Subsequently Mr Palmer issued a large number of proceedings against a variety of parties. We found no fewer than nine to be vexatious as infringing the principle that a conviction must be tackled either directly by appeal, or by application (under s 406 or otherwise) for the exercise of the prerogative of mercy, or by application for judicial review of Crown failure to exercise that prerogative or statutory power. The claims found to be vexatious were:
• one against the manufacturer of a public toilet the door of which is said to have opened unexpectedly so as to subject him to one of the Rotorua charges
• an appeal against a judgment striking out that proceeding;
• the private prosecution of the boyfriend of the primary Auckland complainant;
• an application for orders directing the issue of seven informations of perjury against that complainant
• an application for habeas corpus alleging that the Crown and defence counsel had conspired to exclude the DNA evidence, the primary Auckland complainant had committed perjury, the trial judge had displayed lack of impartiality, and the judge who presided over the Court of Appeal hearing was biased
• proceedings against Telecom alleging that it was responsible for its witness’s giving incorrect evidence at the Auckland trial
• proceedings for judicial review of the Auckland committal
• proceedings against the primary Auckland complainant alleging malicious prosecution
• the counterclaim struck out by Williams J for the reasons reported at [2004] NZAR 374.
[5] But in the interim judgment we declined, in the exercise of discretion, to make the order sought by the Crown. That was largely because there were two disturbing features of the case, to which we referred in the interim judgment and on which the Court of Appeal later relied in allowing Mr Palmer’s appeal against conviction on a subsequent reference under s 406.
[6] One was that the trial judge had declined Mr Palmer’s counsel leave to cross-examine the complainant on the provenance of a semen stain on her clothing which she told the Police had been deposited by Mr Palmer in the course of his alleged offending but which the ESR had reported had come from her boyfriend.
[7] The other was that at the trial a Telecom witness had given evidence that no telephone call had been made to the complaint’s home during the period when she asserted she was with Mr Palmer elsewhere; yet evidence given by a Telecom witness under subpoena at the private prosecution of the boyfriend established that there had been four such incoming calls.
[8] Following a subsequent reference under s 406 the Court of Appeal found that Mr Palmer had suffered a miscarriage of justice.
Attorney-General v Palmer 23 August 2007 (HC)
Sunday 29 May 2011
Tuesday 24 May 2011
Scrambled companies
It's mostly just the language of the headnote in this which is great:
"The Commissioner of Competition (Applicant) v. Superior Propane Inc. and ICG Propane Inc. (Respondents)
Court of Appeal, Linden J.A.--Ottawa, September 8, 9, 18 and 19, 2000.
Competition -- Practice -- Motion for stay of Competition Tribunal decisions, continuing hold separate order with respect to merger of respondents -- Not necessary to prevent eggs from being scrambled -- Irreparable harm not established as feasible to divide merged business within reasonable time period."
Though in all fairness it does follow the language of counsels' submissions and the judgment:
"[11]I must now consider the second hurdle that must be overcome by the applicant, irreparable damage. Counsel for the Commissioner, basing himself on U.S. authorities, argued eloquently that once the eggs are scrambled, they cannot be unscrambled. In other words, if the two companies are allowed to proceed with the merger pending the appeal, it will be almost impossible to undo the damage caused by this in the event of success in the Court of Appeal...
[13]In my view, the metaphor of scrambled eggs is dramatic, but not entirely apt. When one scrambles eggs it is impossible to unscramble them, but a merged company is not exactly like scrambled eggs. It can be broken up, though it is maybe difficult to do so. Competition can be restored. It is not enough for it to be hard or inconvenient to do so. To obtain a stay, the damage must be truly irreparable and proved to be so."
"The Commissioner of Competition (Applicant) v. Superior Propane Inc. and ICG Propane Inc. (Respondents)
Court of Appeal, Linden J.A.--Ottawa, September 8, 9, 18 and 19, 2000.
Competition -- Practice -- Motion for stay of Competition Tribunal decisions, continuing hold separate order with respect to merger of respondents -- Not necessary to prevent eggs from being scrambled -- Irreparable harm not established as feasible to divide merged business within reasonable time period."
Though in all fairness it does follow the language of counsels' submissions and the judgment:
"[11]I must now consider the second hurdle that must be overcome by the applicant, irreparable damage. Counsel for the Commissioner, basing himself on U.S. authorities, argued eloquently that once the eggs are scrambled, they cannot be unscrambled. In other words, if the two companies are allowed to proceed with the merger pending the appeal, it will be almost impossible to undo the damage caused by this in the event of success in the Court of Appeal...
[13]In my view, the metaphor of scrambled eggs is dramatic, but not entirely apt. When one scrambles eggs it is impossible to unscramble them, but a merged company is not exactly like scrambled eggs. It can be broken up, though it is maybe difficult to do so. Competition can be restored. It is not enough for it to be hard or inconvenient to do so. To obtain a stay, the damage must be truly irreparable and proved to be so."
Monday 16 May 2011
A two hundred year recess...
This case must be one of the most unexpected to appear in the English law reports, it concerns the Court of Chivalry, also known as the Court of the Earl Marshall whose jurisdiction is over heraldic symbols:
"On 1 March 1842, the Kings of Arms of Her late Majesty Queen Victoria granted a coat of arms and crest to the recently incorporated borough of Manchester, since enhanced to the dignity of a city, and supporters were granted by Garter's warrant on the following day. The Corporation of the City of Manchester now allege and complain that the defendant company, the Manchester Palace of Varieties Ltd have over a period of years usurped the achievement granted to them by displaying the arms in the auditorium of the theatre and by using them as their common seal...
It is not contended that this court, however long a period may have elapsed since it last sat, is no longer known to the law. It was originally the Court of the Constable and Marshal and has probably existed since the Conquest. At least it had been in existence for very many years before the reign of Richard II, who reigned from 1377 to 1399, and during his time the famous case of Scroop v Grosvenor was heard before it. The hereditary office of Lord High Constable was abolished on the attainder of the Duke of Buckingham in 1521, since when the court has always been held before the Earl Marshal or his surrogate alone and his right to hold the court and to adjudicate at least on heraldic matters was recognised and confirmed by Letters Patent of James I in 1622 and those of Charles II, which were read at the opening of this court...
Hawkins' opinion is of particular value, as he was in practice as a serjeant at the time when this court last sat, that is, in 1737..."
Nonetheless it seems to have slipped through the cracks and whether by accident or ignorance none of the many reforms of English justice between 1737 and 1955 abolished it:
"I have no hesitation in holding that this court has jurisdiction to deal with complaints relating to the usurpation of armorial bearings. Blackstone, it is true, regarded the court as obsolete when he was writing not many years after its last recorded sitting, and his view is indorsed by Sir William Holdsworth in his History Of English Law, vol 1, pp 578-580. No doubt, one of the reasons why the court fell into disuse was because the way in which its decisions are to be enforced is a matter of great doubt and obscurity, but once it is established that this court exists, whatever interval may have elapsed since its last sitting, there is no way, so far as I know, of putting an end to it save by an Act of Parliament. There may be very good reasons for a court no longer exercising powers which were undoubted ... "
A caution however:
"and if this court is to sit again it should be convened only where there is some really substantial reason for the exercise of its jurisdiction. Moreover, should there be any indication of a considerable desire to institute proceedings now that this court has been revived, I am firmly of opinion that it should be put on a statutory basis, defining its jurisdiction and the sanctions which it can impose."
The idea of discovering a long lost court is a thrillng and amusing one, unfortunately not something that is likely to happen in one's everyday line of work.
Manchester Corporation v Manchester Palace of Varieties Ltd, [1955] 1 All ER 387
"On 1 March 1842, the Kings of Arms of Her late Majesty Queen Victoria granted a coat of arms and crest to the recently incorporated borough of Manchester, since enhanced to the dignity of a city, and supporters were granted by Garter's warrant on the following day. The Corporation of the City of Manchester now allege and complain that the defendant company, the Manchester Palace of Varieties Ltd have over a period of years usurped the achievement granted to them by displaying the arms in the auditorium of the theatre and by using them as their common seal...
It is not contended that this court, however long a period may have elapsed since it last sat, is no longer known to the law. It was originally the Court of the Constable and Marshal and has probably existed since the Conquest. At least it had been in existence for very many years before the reign of Richard II, who reigned from 1377 to 1399, and during his time the famous case of Scroop v Grosvenor was heard before it. The hereditary office of Lord High Constable was abolished on the attainder of the Duke of Buckingham in 1521, since when the court has always been held before the Earl Marshal or his surrogate alone and his right to hold the court and to adjudicate at least on heraldic matters was recognised and confirmed by Letters Patent of James I in 1622 and those of Charles II, which were read at the opening of this court...
Hawkins' opinion is of particular value, as he was in practice as a serjeant at the time when this court last sat, that is, in 1737..."
Nonetheless it seems to have slipped through the cracks and whether by accident or ignorance none of the many reforms of English justice between 1737 and 1955 abolished it:
"I have no hesitation in holding that this court has jurisdiction to deal with complaints relating to the usurpation of armorial bearings. Blackstone, it is true, regarded the court as obsolete when he was writing not many years after its last recorded sitting, and his view is indorsed by Sir William Holdsworth in his History Of English Law, vol 1, pp 578-580. No doubt, one of the reasons why the court fell into disuse was because the way in which its decisions are to be enforced is a matter of great doubt and obscurity, but once it is established that this court exists, whatever interval may have elapsed since its last sitting, there is no way, so far as I know, of putting an end to it save by an Act of Parliament. There may be very good reasons for a court no longer exercising powers which were undoubted ... "
A caution however:
"and if this court is to sit again it should be convened only where there is some really substantial reason for the exercise of its jurisdiction. Moreover, should there be any indication of a considerable desire to institute proceedings now that this court has been revived, I am firmly of opinion that it should be put on a statutory basis, defining its jurisdiction and the sanctions which it can impose."
The idea of discovering a long lost court is a thrillng and amusing one, unfortunately not something that is likely to happen in one's everyday line of work.
Manchester Corporation v Manchester Palace of Varieties Ltd, [1955] 1 All ER 387
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