The Attorney-General wants a High Court judgment condemning a speech made in Parliament by Winston Peters set aside and a new trial held on the grounds of a miscarriage of justice.
Peters himself has already applied to have the judgment in question, Justice Jan Doogue’s judgment in Staples vs Freeman, recalled on the basis it breaches Article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014.
Both explicitly prevent the courts from questioning anything said in Parliament.
Peter Gunn, a Crown Law lawyer and counsel for the Attorney-General, this week sought leave of the High Court at Christchurch to be heard in support of Peters’ application to recall the judgment, which was delivered in June.
The Attorney-General’s application said the judgment “cannot be sustained in light of the Parliamentary Privilege Act 2014…”
“Counsel for the Attorney submits that these circumstances are sufficiently exceptional to amount to a miscarriage of justice that justifies recall of the judgment and a new trial.”
He also said intervention by the Attorney-General was appropriate “given the constitutional and general public importance of the issues posed by the judgment and the application for recall.”
In the substantive case, the judge found for Bryan Staples, who helped homeowners with unresolved claims from the Canterbury earthquakes, and ordered Richard Freeman pay his $350,000 for defamatory comments made on Facebook in 2014.
Peters, a former Deputy Prime Minister and New Zealand First leader, was not a party to the case but he had made a speech in Parliament in 2014 which was critical of Staples.
The judge ran his speech full in her judgment and declared it defamatory but concluded he was protected from legal action because he made it under parliamentary privilege – which contravenes the Parliamentary Privilege Act.
On June 22, Justice Doogue’s judgment was also referred by Speaker Trevor Mallard to Parliament privileges committee which has met twice in private on the matter, including today.
It has yet to hear any public submissions or issue any report setting out an explanation.
But it was never going to call the judge before it to explain her breach because that would have breached the comity that is meant to exist between Parliament and the judiciary.
Parliamentary privilege is the term given to a set of rights, including free speech within the House, without which MPs collectively could not carry out their work.
David Parker is both the Attorney-General and chairman of the privileges committee.
It is not clear whether Justice Doogue herself will be making decisions around whether to allow the Attorney-General’s intervention – it would be scandalous not to – and more importantly whether she will make decisions about setting aside her judgment or refer the matter to the Chief Justice, Dame Helen Winkelmann.
She has previously declined to comment on the matter given it was still before the privilege committee.
Parker has been approached for comment.
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