Sceptics rise to challenge
Richard Treadgold | July 13, 2012The NZ Climate Science Educational Trust (NZCSET) enters the High Court at Auckland on Monday morning to challenge the national temperature record produced by NIWA.
The NZCSET is applying for a judicial review of NIWA’s actions in connection with the 7SS – the “Seven Station Series”. Please note that the application does not ask the Court to adjudicate on climate science. The Court would refuse to resolve a scientific question in any field.
I especially hope the climate deniers from Hot Topic and elsewhere finally note that point. They have been jeering from the sidelines for a long time about what they claim is our attempt to get the court to declare the science, but they were wrong.
The hearing is expected to last a week. Until now, the public had no access to the documents filed by each side over the last 18 months (even up to just a few days ago) and we were unable to describe what they said or comment on them.
But the commencement of the public hearing gives us access to the submissions, so I’ll be asking the Registrar on Monday for copies.
I’d like to post or describe the documents here and give readers a chance to comment. Watch this space.
Well done, Richard!
It’s been a battle, hasn’t it? The “adjustments” equal the alleged rise in temperatures. Whether the techniques can be found to be misleading (in their results) is the big issue. The fact that other techniques could be used, and would not show the same trends if used, won’t be the point. The way of doing something is always somewhat subjective. The only hope is to demonstrate and get them to agree that what they say they are doing is not what they are doing PLUS that what they are doing is not appropriate.
Good luck. The mass in motion wants to stay in motion. Even if it is about to run you over.
Thanks for your support, Doug. I’ll pass it on. You’re right — and whether the arguments win the day or there has to be an out-of-court settlement, only time will tell. But I hope I don’t get run over.
As I understand, a judge has had the revised Statements for the last 18 months and already has full knowledge of the respective cases and all the reference material – is this correct?
If so, is the same judge presiding over the in-court application?
Or is the actual sequence not as my understanding?
I must look up the date we first filed our application; it might be two years by now. But documents have been filed and refiled all this time and some late affidavits were filed or altered just last week, so the judge might not be familiar with the arguments. He’s about to listen to counsel present their arguments over the next week, so he’ll be waiting for that, I would think. The judge is Justice Venning. I don’t know if he’s been involved earlier.
To my mind it would be extremely odd for Justice Venning to be coming in cold and hearing the arguments for the first time because this is not just some petty crime or misdemeanor situation. I would have thought that the judge was assigned at the outset and was keeping up to date with every new filing and alteration.
One would hope that there has been some sort of briefing by someone who was keeping tabs on developments if Justice Venning is coming in cold. Otherwise there’s been over 18 months where the documents have been sitting in a drawer incubating and nobody in the arbitration camp is up with the play prior to Monday.
[Dang, missed the "Reply" button again]
Perhaps. But the fact is that the court hearing is where the case is heard, and strategy often involves last-minute changes to finally declare your “real” arguments, in an effort to wrong-foot your opponent. So there’s nothing to be lost in starting your examination of the cards when all movement has ceased.
I would agree if there were to be cross-examination but as I understand that wont be happening because the application is merely a hearing so the opportunity to wrong foot your opponent is rather limited.
When a judge is hearing both sides relatively independently, the judge is in effect your ultimate opponent and the one to convince in order to obtain a review (there’s no jury). If you are hitting the judge cold with a technical argument (previously undeclared in SOC) that takes a bit of assimilating even for legal intellects you may only succeed in wrong footing the judge I fear.
I guess the assimilating really takes place in the judges deliberation AFTER the hearing. You inform that the hearing will take about a week but has there been any indication of the time the judge will take after that to deliberate before handing down the decision?
I heard a comment yesterday that seemed to allow for cross-examination. I’ll check. Handing in a late argument is a good way to wrong-foot your opponent, as they may have no time to get a rebuttal into writing. The case is determined on the documents, not verbal argument, so if it’s not in writing, it doesn’t matter. Obviously it’s not possible to bewilder the judge with an undeclared point. Finally, there’s been no indication of when the judgement might be handed down. The judge won’t know that until he’s heard the case.
You say it’s “merely a hearing” but it requires Queen’s Counsels and up to a week at in-court rates of pay, so it’s a hearing that stands to win or lose the parties a large amount they value at several levels.
By “only a hearing” I was making the distinction between criminal matters (e.g. the judge and jury Scott Guy murder trial) and civil matters (e.g. jurisdiction to deal with summary judgment applications) in the High Court. See http://www.justice.govt.nz/courts/high-court/high-court-home
Whether cross examination will be allowed is probably somewhere in these High Court Rules http://www.legislation.govt.nz/act/public/1908/0089/latest/DLM147653.html?search=ts_act_judicature+act_resel
If allowed, your wrong footing strategy may be valid but if not I’m doubtful of it.
What I am getting at is that the High Court deals with “complex” civil matters. It would seem to me that it makes a great deal of difference to the outcome if a “complex” matter has had at least 18 months to jell in an adjudicating judge’s mind (along with revisions) than if the judge comes in cold on Monday morning.
In the former, more complexity can be assimilated and understood clearly by the judge than in the latter unless there’s an extended deliberation period after the hearing. If you’ve ever tried to assimilate with clear understanding in a few hours a complex matter that has taken 100s of man-hours to compile you’ll know what I mean.
Should have been:-
“If allowed [AND the judge is fresh to the issues], your wrong footing strategy may be valid but if not I’m doubtful of it.”
Whether cross examination is allowed seems to be at the discretion of the judge depending on constraints (e.g. to secure the just, speedy, and inexpensive determination of a proceeding):-
Going by 7.9 (2) Justice Venning could have been assigned this case from the outset and made the request for the SOC & D because (2) states:-
“On an originating application a Judge may direct the parties to file a statement of claim and of defence, respectively”
Therefore Justice Venning would already be very familiar with the issues (I would have thought). If so it follows that he would allow cross questioning because otherwise all the Justice is doing is listening to Queens Counsels read from the documents what the Justice has already read from them. That would be daft. If the judge only made a judgment from what is written in the documents there would be need for a hearing.so there must be more than that allowed in court (more steps in the proceeding) including cross questioning surely. If that’s so then there will be matters raised verbally in court as a result of the cross examination that are not explicitly laid out in the documents.
If I’ve got this correct, the judge will already have an idea as to the judgment (from the SOC & D) but that idea could be turned around in court next week by the verbal exploration by each Counsel of the other parties Statements. That’s where they earn their keep – or not.
Good luck guys. The culmination of a lot of work and expense. Hope that cheque from Big Oil arrives soon to defray costs.
If a judicial review is granted, what exactly does that mean? And what are the intended outcomes of such a review?
My lay impression is that the judge may make any order he thinks just, from no action to ordering a reconstruction and anything in between. There’s a right of appeal against his orders or absence of orders, too.
That assessment fits the High Court Rules RT:-
A combination of (b) AND (c) AND (d) would be the most desirable outcome but if the options are rigidly mutually exclusive (OR) as stated in the Rules then (d) it is.