David Bain Seeks Judicial Review of Minister of Justice's Decision

David Bain has filed a claim in the Auckland High Court seeking a judicial review of Justice Minister Judith Collins' handling of his compensation case.The compensation bid is now on hold.

Update: Karam is now comparing the action of Collins with that  of Mugabe from Zimbabwe in holding "secret" reviews.

In reply to by Mike Stockdale

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On RadioLive Prof Bill Hodge described this judicial review action as a novel action and has doubt of its success.  He said this was because Collins is not exercising a power given to her by an Act of Parliament.  I agree.  I was sceptical of its success but couldn't put my finger on why except as I said I thought that the remedies of declaration and injunction could not work and it is unlikely and damned near impossible and theoretically impossible for a court to assume a power that belongs to a Minister.  All ithe Court can do is say she did it wrong explain how she should have done it and direct (injunct) her to start it again correctly.  This is hardly going to speed things up which is what Karam has said is the aim of the action.  Therefore any victory by the Bain team would be pointless and hollow as I see it.  In fact I wonder if this is an initiative by Karam's son, it seems so naive.  But Bill Hodge finally encapsulated what I had not been able to put a finger on.  Without Collins acting pursuant to a section of an Act of Parliament granting a power to her as minister this is simply not correctly a Judicial Review case.   But as I said earlier I am all in favour of Karam and Bain filing as many damned foolish cases as possible.  It increases the chance that they will be publicly shown as the fools that they are.  According to Chuck the public feedback on talkback is already demonstrating this tendency.  The Karam behavior continues to confirm the claim we have always made about him on this site and in Muddied Waters, that Karam has an inflated ego.  Inevitably such egos get trapped.  My old bible bashing dad always said it from his beloved good book "Pride comes before a fall"

Yes.  By the way does anyone know how Simon Power came to choose Binnie.  Did anyone suggest him as a good choice?  Karam perhaps?  If Prof Hodge is right as I believe he is it wil take an activist judge, one prepared to come up with a novel remedy, to decide this Judicial Review case for Bain.  It would take no less than a Binnie type.  Since Thomas J retired from the C of A, NZ does not have many activist judges as the recent Maori case and also the lesbian marriage case demonstrated.  Our most famous activist judge of all went to sit on the Privy Council and Judicial Committee of the House of lords as Lord Cooke of Thorndon.

In reply to by Bushlawyer

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Judith (1,204) Says:
January 31st, 2013 at 2:46 pm

flipper (1,337) Says:
January 31st, 2013 at 2:32 pm

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Flipper, a copy of the Bain press release which will clear up some of the those answers for you.

MEDIA STATEMENT BY JOE KARAM ON BEHALF OF DAVID BAIN
IN RESPECT TO HIS CLAIM FOR COMPENSATION

30 January 2013

Today, a claim was filed in the Auckland High Court by David Bain against the Minister of
Justice seeking judicial review of the actions taken by her since she received Justice Binnie’s
report in late August 2012, including the secret process which culminated in the Fisher report.
The claim includes allegations that the Minister has breached David’s rights to natural justice,
breached his rights under the New Zealand Bill of Rights Act 1990, acted in bad faith, abused
her power, and acted in a biased, unreasonable and predetermined manner. Declarations are
sought from the Court to this effect, along with any necessary further directions.
The Minister has stated that she intends to recommend to Cabinet further options on Monday
4 February 2013. In the circumstances, a request has been made to the Crown that any further
action in relation to David’s claim be deferred pending the outcome of this judicial review.
David Bain has particularly requested that I make it known that he anguished over the
prospect of returning to Court, and only did so with great reluctance. The application is
necessary because the Minister has continued her policy of refusing to constructively
communicate with his advisers, and because he no longer has any confidence that his claim is
being assessed in a fair manner.
Any further enquiries please contact Joe Karam on 021 801601.

In reply to by Mike Stockdale

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So the remedy he seeks is a declaration.  i can't see how that can help him even if it succeeds.  It can't speed the process up as he says he desires since the declaration will be a comment on the Ministers's actions/decisions that she has already made.  It can only be a hollow moral victory at best.

Karam's latest foray is more about garnering favour with the public than attempting to stymie Collins.  The legal experts tell us the judiciary will be loathe to interfere in the political process and the best Karam can hope for is that Collins gets a rap over the knuckles.

This Judicial Review is all about winning the hearts and minds of the public. This has always been Karam's modus operandi and has proved very successful in the past.  He will know that Cabinet will ultimately turn down DB's bid for compensation and he is just preparing the ground for the battles ahead.

The risk for him is that I perceive the tide of public opinion is starting to turn against him and this attempt to curry favour with the public may backfire.

In reply to by Bushlawyer

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I don't believe this latest foray by Karam and co will change anything. It seems to me to be a last-ditch effort to get Binnie's report accepted. That's not going to happen.
Sooner or later another report will be commissioned. Either one person will write that report, or perhaps, though unlikely, a panel of three judges will review the case.
Hopefully Bain will be interviewed again. This time he should be cross-examined when he gives evasive or contradictory answers,by condradictory I mean answers that differ from what he has said before. And he should also be asked to explain when he provides an answer which contains information that he has never mentioned before.
He will not be found innocent on the BOP's.
He will not receive any compensation.
He may be charged with perjury.
National will win the next election.
The Bain case will ,at last , become old news, unless,of course, David Bain confesses,which is most unlikely to happen.

The prodavids like to keep an eye on me, so you can be assured they will have read the above before the day is out and at least one of them will probably have reported back to you know who.
A few days ago I put a message on here thanking Kent Parker and within minutes it was all over kiwiblog.
They were asking David Farrar for my head on a platter.
The gang of four. One is a double killer, another I am almost sure has spent time in jail, and a third one is a compulsive liar. 

Mike - I agree with your comments but think things could become unstuck should Labour win the next election in 2014. The Labour Justice spokesman has been scathing of Collin's handling of this matter.

In the old FPP election, John Key's team would bolt in for a third term.  However, I think the Greens are going to get 15% or so of the vote and Labour will probably get 35 - 40%.  The Maori vote will collapse due to the myriad of Maori parties and Key will be left with the unenviable choice of Winston as a coalition partner.

Frankly, I think a Labour-Green coalition is a distinct possibility.  

Hopefully the Nats will have done and dusted the Bain compensation claim by then.

In reply to by Bushlawyer

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I agree too. Joe is in deperation mode now. He must surely know that Binnie has destroyed himself as well as Joe's  chances for compo. Joe is playing to the public and the news media to try and pressure the Govt. I am hoping that the media now know they can't go along with Joe any more.

In my very honest opinion, I think that Joe Karam has breached many people's rights to natural justice, and breached many people's rights under the NZ Bill of Rights Act, has acted in very bad faith, abused his celebrity status, and acted in a demonstrably biased, unreasonable and predetermined manner.

Totally.  I heard him on Radiolive suggesting he cared about the cost to the taxpayer too.  Made me laugh.  Also heard a host today describe Hone Harawira as a "total lunatic".  Couldn't help thinking how you are being sued for tamer language about Karam.

In reply to by Bushlawyer

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It wouldn't surprise me if David has decided there will be no more interviews with a QC meaning that there is zero chance of a new report being produced. So as a last ditch effort by Karam to get some blood money he is trying for a judicial review of the Binnie Collins affair.

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The latest news is that the Bain Team has filed Judicial Review procedings against Judith Collins claiming breach of natural justice over the review of the Binnie report.  As far as I'm concerned this is good news.  I figure the more time the Bain Team spends in court the greater their chances of getting a bloodied nose and having the public persona of invincibility damaged. 

Judicial review is a Court action against a public official, in this case a Minister of the Crown,  The last such case was the Maori case over the sale of power company shares.  Judicial Review procedings allege that the official action is "Ultra Vires" (Outside the Law).  in this case they say Collins' action is ultra Vires because she did not observe natural justice by keeping Bain informed that she ws having Fisher review the Binnie review and in fact allegedly advising Fisher that he should not let the bain Team know what he was up to.  A number of remedies are available in sucessful cases.  this are injunctions and declarations.  In this case I would think the later would apply.  If I am right then the action is a bit pointless because the injunction merely says "Minister you did this wrong by not informing Bain of what you were doing, now you have to do it all again correctly, ie by informing Bain".  It is in extremely rare cases that a Court can and will usurp the decision making prerogative of an official and substitute its own decuision and the higher ranking the official is the less likely this will be the case and they hardly come higher than Ministers.  If they win it will be a moral but pyrric victory.  A famous Judicial Review case was in 1976 when Mr fitzgerald took judicial review against the minister of Finance, one R D Muldoon, also prime minister.  He won his case, which was that Muldoon's instruction to the IRD to give every taxpayer their compulsory savings collected by the Rowling Labour govt back before legislation cancelling the scheme had been passed.  The court agreed Muldoon had acted ultra vires but observed that by the time of the case everyone already had their money and the legislation was in parliamentary process and given the government majority would be passed.  The case demonstrates the fact that the Courts are the most powerful arm of government and yet paradoxically the weakest since they rely on the other arms of government to carry out and/or enforce their rulings.

It strikes me as being a very risky move as no previous compensation claimant has been involved before the process result was announced. They have been told about the same time as the public. Essentually the report is legal advice to the Minister and Cabinet and privileged. Wasn't it S. Grieve QC who sail the best thing he could do was take the freedom and run.

The ministry did go to Scott Watsons defence team and found out he did not have one...no legal Aid, but Greg King knew the case and became the lead. Only he, Mike Antunovic  the ministry and mcdonald QC know what is in the report. King and Antunovic were made to sign contracts something to do with the official secrets Act not to devolge the report contents. Their reply wasa back in a month but it appears to have disappeared into the ether as last year when pressure was put on Collins by Greg King she tried to blame him saying she was waiting on his reply but he had the ministry ackowlwdgement it had been returned. 

I think the court will be reluctant to get involved in what is really a political matter with no real rules. Collins does not seem to be the type to take a step back.  

I think Karam believes that the positive conclusion of David Bains innocence from the discredited Binnie report is about as good as a result as possible, and he is probably right there. So of course he wants to hang on to that result, he doesn't seem to mind that the report has almost as many errors as his book David and Goliath, of which Binnie read, which of course may have added to his silly conclusion that Robin Bain was the killer. Karam has been incredibly lucky to get the result from Binnie. But if a very robust investigation was done by a competent NZ QC I am sure they would find Robin was not at all involved, which of course would be a disastrous result for Karam, it being the end of the road and with Davids guilt set in stone for all time, so of course he wants to hold on tight to Binnies report no matter how pathetic it now looks.