A recent Supreme Court decision split 2 -2 between four sitting members of the Bench has, according to statute, upheld the Court of Appeal's earlier ruling.
While in accordance with legislation, the effect "remains frustrating from an appellant's perspective," counsel for the appellant David Chisholm QC says.
When the case of John Gilbert and QSM Trustees Limited (in receivership and in liquidation) v Body Corporate 162791 (SC 59/2015) [2016] NZSC 61 was heard by the Supreme Court, only four judges were able to sit, Mr Chisholm says.
"The matter is quite simple. We turned up on the day of the hearing. When the Judges came out, there were only four Judges, not five.
"Elias CJ confirmed that Arnold J was ill and/or unable able to sit (or words to that effect).
"Her Honour accordingly confirmed that the Court would sit with only four Judges," he says.
As it happens, the four judges were unable to agree on the outcome of the appeal and the result, according to a media release by the Supreme Court, "was an even division of the court".
Justices William Young and Glazebrook would have dismissed the appeal, while Chief Justice Elias and Justice O'Regan would have allowed the appeal.
In accordance with s 31(2) of the Supreme Court Act 2003, the Court of Appeal decision – that which was under appeal – was affirmed.
Supreme Court Registrar Kieron McCarron has confirmed that Justice Arnold was unable to sit due to illness.
"There was insufficient time to arrange for an Acting Judge to sit," he says.
"As noted in the Media Release for the Judgment, because four Judges heard this appeal and the result was an even division of the Court, s 31(2) provides that the decision of the Court appealed from is affirmed.
"An equivalent provision operates in respect of the Court of Appeal: see s 59 of the Judicature Act 1908and Deynzer v Campbell [1950] NZLR 790 (CA).
"There are equivalent statutory provisions and similar practices are followed in courts overseas; see for instance the High Court of Australia's decision in Gould v Brown (1998) 193 CLR 346."
Mr McCarron says "appointment of acting judges (of which there are 3 appointed ie. Blanchard, Tipping and McGrath JJ) is also governed by the Supreme Court Act (s23) and in terms of this provision are authorised to sit in specific cases by the Chief Justice if the need arises."
He said he was unsure whether the Gilbert appeal was the first application of s 31(2).
Mr Chisholm says there is "concern that the illness of a Judge can potentially impinge upon the substantive rights of an appellant".
"It seems unsatisfactory that the court did not explain the circumstances that required it to sit as a four-judge panel," said constitutional law lecturer Professor Philip Joseph, of the University of Canterbury, after reading the Supreme Court's decision.
"The usual recourse is to appoint an Acting Judge to sit," he says.
"The court still had the option of adjourning the hearing but decided to push ahead instead.
"I suppose counsel were in Wellington and ready to argue the case, so the court thought that it should really proceed to hear the matter rather than adjourn.
"Damned if you do and damned if you don't!"