It’s what we were warned about, but we didn’t listen. Our Supreme Court judges whipping out the stiletto of judicial supremacy from below their robes and lunging at the rule of law. The statute books used as mere kindling for fireplaces in judicial chambers while the flag of juristocracy flies from 85 Lambton Quay. When the post-mortem certificate of Lady Justice is signed, the decision of A, B and C v D and E Limited [2024] NZSC 161 will be listed under cause of death.
The case purported to be about whether fiduciary relationships exist between parents and children and whether they persist into adulthood. In its judgment, the Court subversively confirmed the indicia for fiduciary relationships are those found in the leading Supreme Court decision of Chirnside v Fay – a decision written by Communist judges Blanchard and Tipping JJ. And Paper Reclaim? Amaltal v Maruha? Bristol and West Building Society v Mothew? The way that this decision fits so well with all of these cases is all the confirmation that you need that judicial subversion of democracy has been a decades-long project.
A veiled judicial power-grab then ensued as the Court rejected the leading Canadian approach as offering too little guidance and preferring the long-standing New Zealand approach “as providing greater clarity as to the circumstances in which a fiduciary relationship will be found to exist” (at [50]). While on its face this might seem to bring greater certainty to the law (and reduce judicial discretion at the same time), you would have to be pretty credulous to accept that at face value. Then, in what I can only assume is some sort of double bluff, the Court declined to adopt more recent Kós J equitable murmurings in Dold v Murphy that sought to supplement Chirnside v Fay. It instead reaffirmed the general approach in Chirnside v Fay.
Having brazenly committed itself to an application of long-standing principle, the Court then considered how it should apply to parent-child relationships. As the Court observed, “[t]he law in relation to the coincidence of fiduciary and family relationships is not settled in New Zealand” (at [55]). Naturally that meant the judges could just do whatever they wanted. Taking full advantage, and under the pretence of a careful tour of domestic and Canadian authority, the Court drew out themes from cases about fiduciary relationships in caregiving relationships with a view to identifying principle. Keeping its insidious motives for these techniques hidden, the Court confirmed that the Chirnside approach meant that “a fiduciary relationship exists between a parent and a minor child while that child is in the parent’s care” (at [63]). This outcome was suspiciously aligned with the tenor of the authorities that it had reviewed and with both parties’ positions.
But if the parent-minor child relationship was to be considered fiduciary, what are the extent of the parent’s duties? Here, the Court shamelessly invented two important reasons why the duties should not be broad. The first of those was because Parliament has legislated to regulate the parent-child relationship “where appropriate and in limited circumstances” (at [65]). In what I am choosing to treat as veiled sarcasm, the Court recognised “there are broad and complex issues of social policy to be weighed in determining just where such regulation is appropriate” that it pretended made judicial intervention inappropriate (at [65]). Second, the Court recognised that it was “important that the law not intrude unnecessarily upon a relationship which is primarily based upon natural love and affection, and which is so multifaceted” (at [65]). Alas, by sticking its oar in in this way it simply confirms the Court’s typical insistence that judges be able to have the final say in all aspects of society.
Then, the Court further confirmed an approach of one of the Court of Appeal judgments, giving clarity through express endorsement and resolving a difference in approach. The Court then proceeded to apply the law to the facts in a straightforward way that resolved the case.
That wasn’t enough for the Court though. It went on to reject other submissions from counsel assisting because the claims were not grounded in the pleadings. This resort to standard concepts of civil procedure had chilling parallels with Smith v Fonterra where it had declined to strike out a claim on the basis it disclosed reasonably arguable causes of action.
And then when invited to apply tikanga as relevant to the recognition of fiduciary duties, the Court said (at [83]):
We do not deny the great wrong which was done to the appellants by their father. We accept that tikanga provides another framework for explaining and understanding the harm done to the appellants. But this is not a case where the law had no ability to respond to the justice of the appellants’ claims — there were claims available to them which were not pursued at the time, albeit for understandable reasons. The developments the appellants seek in the law would require a reworking of the fundamental concepts of fiduciary relationships which is disconnected from their doctrinal underpinnings and would be incautious, creating great uncertainty in the law.
All of this is a disconcerting departure from the common law method, the rule of law, democracy, certainty, predictability, consistency, respect for Parliament, and not mowing your lawns after 7pm. Fortunately, the answers are clear. Judicial purity tests will rid us of these turbulent priests of the law, and good luck with judicial activism when we amend the Bill of Rights Act so that section 4 is written in capital letters.
But, in the meantime, the next time you hear about claims of judicial activism, I want you to remember this case.
Strictly obiter 