TME LINE COURT CASE RTLNZ v. ASC

Information obtained under the Official Information Act  from the Abortion Suupervisory Committee revealed that by 8 July 2009 the the total cost to public funds is $279,850.55 and there is more to come. So where has all this money been spent?

The case has been ongoing since 2005. To summarise the case has now been considered by nine judges (Wild, Gendall, Young, France, Miller, Baragwanath, Hammond, Robertson, Chambers), an expensive and ponderously legalistic form of harassment by RTL that so far has changed nothing. And it’s not over yet. .As a reminder here is a time line of the case so far.

 

Background Catholic Ken Orr founded RTL in 2000 after the Christchurch Branch of SPUC (as it was then known) was expelled from the national organisation for Ken’s uncompromising attitude in campaigning to reintroduce the Status of the Unborn Child Bill. Since then SPUC has changed its name to Voice for Life and it is noteworthy that it has not publicly supported the RTL v ASC legal proceedings. RTL initially complained to the ASC about its concerns on how the Contraception Sterilisation and Abortion Act (CS&A Act) was being interpreted. The complaints were referred to Parliament which referred the matters to a select committee. It in turn referred the matters back to the ASC. That was when RTL turned to the courts and filed proceedings against the ASC.

May 2005 RTL filed a mandamus in the High Court in Wellington against the ASC for its alleged failure to fulfil its statutory duties. These claims included the failure of the ASC to ensure that the human rights of unborn children received the full protection of the law, the failure to hold certifying consultants accountable for the lawfulness of the abortions they authorised and the failure to stop abortion on demand.

20 June 2005 The ASC applied for orders striking out the proceedings against the ASC. The ASC described the action as vexatious and an abuse of the Court's process.

8 September 2005 In the High Court in Wellington Mr Justice Wild heard the case between RTL and the three members of the ASC, Dr Lesley Rothwell, Dr Papaarangi Reid and Mrs Marlene Lamb (although the latter had resigned from the committee in March 2005, leaving a vacancy.) The ASC never actually appeared in the courtroom and its case is represented by Crown Law. RTL named the Attorney-General as second defendant. The judge decided that some of RTL's claims should be struck out but that others, if rewritten, could proceed. The claim against the Attorney-General was one of those struck out.

28 October 2005  RTL filed an amended claim in accordance with Judge Wild’s decision

.  

29 November 2006 Associate Judge Gendall heard an appeal by the ASC to disallow seven affidavits, six of them from aggrieved women and one from a woman psychiatrist Dr Julia Aranui-Faed. One of the women had already gone public about her hopes to tell her sob story to the High Court in an interview for the New Zealand Herald (7 January 2006). Later (29,30 June 2008) Ann Marie May for Radio New Zealand’s ‘Insight’ programme  interviewed another of the women called Sharon (as an example of someone who regretted her abortion) without making clear her involvement in the case.

21 December 2006 The judge ruled the affidavits admissible. Even though one of the women had already gone public the judge gave the women name suppression then even more bizarrely published their names in his legal opinion! So much for name suppression. RTL shouted victory but the ASC requested that the case be heard again by a full judge (not an associate judge).

28 May 2007 Mr Justice Young heard the case in closed chambers and ruled in favour of the ASC by having the affidavits of the six aggrieved women struck out as irrelevant to the case but the affidavit of Dr Aranui-Faed was allowed. Dr Faed considers that women with existing mental health problems will only suffer more problems if they have an abortion.

June 2007 The newly appointed members of the ASC are Professor Linda Holloway as chairperson, Dr Rosy Fenwicke (who is also a certifying consultant) and  Rev Patricia Allan.

24 September 2007 Mr Justice Simon France heard arguments on whether affidavits from two paediatricians relating to fetal surgery and fetal diagnosis should be allowed.

3 October 2007 The judge ruled in favour of RTL.

7-9 April 2008 After all these skirmishes the case proper was eventually heard by Mr Justice Forrest Miller in the High Court Wellington. He rejected RTL's claim seeking legal status for the unborn child. He also rejected criticism of the counselling services and the method of making appointments at the clinics. He did however question the legality of over 98% of abortions being done on the grounds of mental health, but reached no conclusion on the question of whether certifying consultants were complying with the abortion law. No declarations were made. No clear advantage for either side, let alone the women of New Zealand. That said, RTL has subsequently used the ruling to suggest abortions in New Zealand are being carried out illegally. 

9 June 2008 The judgment of Mr Justice Miller was released. He agreed to meet with the parties to discuss the form and utility of any declarations. None were made.

17 July 2008 Crown law representing the ASC applied for direction from an Appeal Court judge and Judge Baragwanath in a Minute advised that the correct procedure was to apply to the Appeal Court. This they did and RTL cross- appealed.

12-13 May 2009  The case was heard in the Appeal Court, Wellington  by Justices Hammond, Chambers and Robertson. The Appeal Court dismissed the case as no declaratory order had been made in the High Court and therefore there was no case within the Appeal Court’s jurisdiction. This was contrary to the opinion previously given by Baragwanath. The Appeal Court also expressed the opinion that the issues raised were constitutional and therefore the responsibility of parliament and not the courts. The recommendation was that the case be referred back to the High Court so that a declaratory order could be made. Depending on this it would still be possible to return to the Appeal Court.

20 July 2009 The case was heard again by Mr Justice Miller in the High Court Wellington.

3 August 2009 Miller's judgment released. No declaratory orders were made as requested by RTL. The lawfulness of abortions and the actions of the ASC are under the supervision of a parliamentary select committee and it is not the role of the Courts to interfere with this process.

20 August 2009 An appeal was lodged by ASC with the Appeal Court and RTL will counter appeal. The grounds of the ASC's appeal are that the Court erred in law in assuming it had jurisdiction to consider whether certifying consultants were obeying the law and, even if it did have jurisdiction, there was no evidential foundation for the judge's findings.The ASC's powers to review and scrutinise the decisions of individual certifying consultatns are also disputed. Right to Life's cross-appeal is against the judgment refusing to grant relief and also the Court's findings relating to the rights of the unborn child and counselling to be independent of abortion providers.

4-5 May 2010 Date set down for Court of Appeal hearing but this has now been changed to 5-6 October 2010..

Costs To date nine judges, five from the High Court and four from the Appeal Court have been involved in this case which has cost the Crown $309.097.24 (GST inclusive) as at the end of 2009.