The last refuge of scoundrels

by Gareth on October 14, 2013

Tomorrow, in the Appeal Court in Wellington (pdf), Justices Harrison, French and Miller will hear argument in the case of the NZ Climate Science “Education” Trust (NZCSET) versus the National Institute for Water and Atmospheric Research (NIWA), in the continuing effort of the cranks to litigate away warming in New Zealand over the last 150 years. According to the man who kicked off the whole process, Richard Treadgold of the “Climate Conversation” web site, the NZCSET bases its appeal on two main points:

The focussed grounds are that all three NIWA temperature series resulted from serious mistakes of fact, which impugned the rationality of the Crown Entity’s decisions.

This seems somewhat surprising, given that the judge in the original case was so scathing of the NZCSET’s expertise in his judgement delivered a year ago. One wonders how the Appeal Court will react to any attempt to relitigate the original decision, given Justice Venning’s findings. But then perhaps the whole appeal has rather more to do with the second basis for appeal:

The Coalition is also seeking reversal of the High Court’s costs order.

Costs of $118,000 were awarded against the NZCSET — a trust formed specifically to bring the original court case, and which did not legally exist until weeks after the original court documents were filed. Could it be that the trustees of the NZCSET, being Terry Dunleavy, Bryan Leyland and Doug Edmeades1, aren’t happy to pay the costs incurred by their leader and legal eagle, Barry Brill? One hopes that they’re not planning to fold the trust in the event that their appeal isn’t successful, thus avoiding having to pay NIWA’s costs. After all, they founded the trust with lofty aims:

… to promote a heightened awareness and understanding of, and knowledge about, the climate, environment and climate and environmental issues among scholars and researchers, members of the professions and members of the public… (see Sec 4.1.1 of the certificate)

I have a few questions for the trustees:

  • How much money has the trust disbursed amongst scholars and researchers since it was established on July 30, 2010? Over three years of fund raising and charitable endeavour has surely delivered more than a footling little court case?
  • In what ways, other than by bringing an unsuccessful court case, has the trust “heightened awareness and understanding of climate”?
  • In the event that you are unsuccessful in your appeal, are you planning to pay up in full for the costs awarded against you by Justice Venning? If not, why not?

I eagerly await assurances from the NZ Climate Science Education Trust that their laudable education effort continues, and that it has adequate funds to meet the costs they’ve incurred by taking NIWA to court. No doubt they will have plans for further and more productive education efforts in the near future. But I won’t be holding my breath…

Update: Tuesday 15th @ 3-50pm

Word reaches me that the NZCSET have just capitulated and abandoned their appeal against Justice Venning’s decision — in other words, a comprehensive victory for NIWA and a further vindication of the work done by their team on the NZ temperature record. The Appeal judges have reserved their judgement on costs, but it’s possible that the NZCSET’s legal bill might just have increased a fair bit.

  1. According to the certificate of incorporation: go here, click on Register Search, insert 2539286 in the appropriate box, and click “search”. []

{ 21 comments… read them below or add one }

Thomas October 14, 2013 at 10:03 pm

I always thought an appeal can only be heard after the cost of a previous case have been paid in full by the loosing party. The exception being that the plaintiff pleads poverty perhaps….
I guess one could argue perhaps that the original trustees sued in private partnership since the trust itself was founded after the original case was filed. In that case the gentlemen should be personally liable one would think? Also if trustees of a charitable trust grossly mismanage the affairs of their charity, then too the trustees are personally liable.
Doubling down at the Court of Appeals will not come cheap either….

Gareth October 14, 2013 at 10:10 pm

You may need to consult a real lawyer, Thomas. The NZCSET seem to be unable to find one who knows what he’s doing… ;-)

Thomas October 15, 2013 at 7:18 am

Yes, I guess they should hire one who is not beholden and part and parcel of their nutty quest. Otherwise they will share the fate with Monty Pythons Black Knight I would imagine: ;-)
http://www.youtube.com/watch?v=2eMkth8FWno‎

Rob Taylor October 17, 2013 at 3:51 pm

Here’s failed lawyer and politician, Barry Brill, admitting that NZCSET didn’t do their homework before the original NIWA case – too busy being prolix, I expect…

In essence the point was that, as the appeal relied upon NIWA’s self-contradiction, David Wratt should have been cross-examined on that issue at the High Court. We naturally pointed out that Judicial Review proceedings are heard “on the papers” so there is no opportunity for cross-examination. The presiding judge said (in effect) this was because JR is not designed for factual disputes, and most such disputes do not involve allegations that Government agents have made major mistakes. When such allegations are being made, a plaintiff should make application for an exception to the “no cross-examination” rule.

The trust’s QC advises that this ruling is unprecedented. However, that might reflect the fact that s 92 of the Evidence Act is new and these particular circumstances may not have risen before.

http://www.climateconversation.wordshine.co.nz/2013/10/coalition-appeals-niwa-case/#comment-271002

Tony October 15, 2013 at 8:15 am

“which impugned the rationality of the Crown Entity’s decisions.”

Which decisions are they referring to? The decisions by the crown to pursue draconian policies of inaction? The decisions to not inform the public of the grave dangers of climate change and positive feedbacks? The decisions to assign their chief scientific advisor extremely narrow terms of reference that mislead the general public into climate complacency?

Methinks that the NZCSET underestimate the crown entity’s ineptiude and ability to do nothing even in the face of good science!

Rob Taylor October 15, 2013 at 8:48 am

I look forward to more great comedy from the wild and wacky team who unleashed so much hilarity with their original “Statistical Audit of the NIWA 7-station Review”:

http://www.climateconversation.wordshine.co.nz/2013/10/coalition-appeals-niwa-case/#comment-269121

Rainbow October 15, 2013 at 1:37 pm

[Snipped. It appears that "Rainbow" is "Flatearth2013" posting under another name. Therefore both commenters are banned for violation of HT's comment policy. GR]

bill October 15, 2013 at 7:30 pm

Yeah, I figured that was a really dumb attempt to lure in ‘outrageous alarmist’ comments.

Didn’t work, did it?

And you still can’t answer Doug’s questions if you’re denied the copypaste option, can you, little troll?

Rob Taylor October 15, 2013 at 4:47 pm

Memo to Koch brothers: Please send smarter trolls.

bill October 15, 2013 at 9:09 pm

Re Update – result! But fans of prolixity may just have missed out… ;-)

Thomas October 15, 2013 at 10:25 pm

Re Update: In the Monty Python skid the Black Knight lasted 4 minutes… wonder how long the Appeal Court deliberated…. ;-)

cyclone October 16, 2013 at 9:59 am

Probably about 6 minutes; 5 to stop laughing, 1 to decide.
Seriously, the actions of this trust in light of it’s stated aims need to be investigated and it needs to be wound up. They’ve abused the process and the courts, now the chickens are coming home to roost.

Beaker October 16, 2013 at 11:47 pm

Had a quick look on Bishops Hill. Mr Scrace has not kept the true believers there up to date with media coverage of this prolix court case, despite being asked to back in December 2010. There was lots of excitement over there about this case, such as -
“They must be sh***ing themselves as they have been found out in this untruth (may I say alleged lie?). Their jobs are in jeopardy and there is nothing like a scientist who has been found out in defending his back so they will carry on for as long as they can.”
But strangely their attention appears to have drifted.
Why oh why has andyS not updated these enthusiastic followers?

bill October 17, 2013 at 11:18 am

You could drift over to Climate Conversations and ask him! I believe it’s only him and Dixie2 there these days…

Not that the Sticky Bishop hasn’t bothered to find out, either. Beliefs are more important than facts, after all!

Beaker October 18, 2013 at 1:26 am

I dont fancy playing gooseberry to andyS and their significant other over at Climate Conversations thanks very much!

John Mashey October 17, 2013 at 1:59 pm

Breaks my heart :-) Once again, a fervent desire to get climate science ./ scientists into the courtroom does not work out so well, in he vein of be careful what you swish for.

As for people not following up, later this month, I should be finished with the Part 2 followon for Defamation By Internet? Part 1 – Murry Salby’s Short-Lived Blog Storm, in which a blog storm generated a 4-day cornucopia of non-skeptical thinking, paranoia, conspiracy theory … and repeated denigration of those who had studied relationships between conspiracy thinking and rejection of climate science. Of course, this just reaffirmed their results.

After 1700 comments in 4 days, when this crashed to halt, suddenly no one wanted to discuss it any more. :-)

Rob Taylor November 12, 2013 at 9:18 am

O frabjous day! Callooh! Callay! The climate cranks have lost their appeal against court costs awarded against them in their case against NIWA.

This was on RNZ this morning; I have confirmed with NIWA, but the judgement’s not online yet – should be soon.

https://forms.justice.govt.nz/jdo/Search.jsp

One hopes that NIWA will now press for payment from the NZCSET trustees themselves – including their oleaginous chairman, Barry Brill – and thereby dissuade any repitition of this timewasting tactic.

Rob Taylor November 12, 2013 at 10:59 am

Here are the main points of the judgement; once again, the Court is politely scathing as to the merits and conduct of NZCSET’s case:

“[11] The Judge declined NIWA a further uplift. He also refused the trust a discount, rejecting the submission that it was serving a public interest as a disinterested citizen seeking to hold a public body to account.

The Judge held that the public interest exception to the normal rule that costs follow the event is available where the case concerns a matter of genuine public interest beyond the interests of the immediate litigant, the case has merit, and the litigant concerned has acted reasonably.

He accepted that climate change may be seen as a matter of public debate, but the case could not resolve that issue, which is a scientific problem not suitable for determination by a court. Further, the proceedings were pursued by the trust to advance its own interest in challenging NIWA’s records.

[12] On appeal, (NZCSET) again invoked the “watchdog principle”, contending that the proceeding was properly brought in the public interest and was not merely vexatious; further, the trust sought no pecuniary gain. In the circumstances, he submitted, the principle that it is appropriate for responsible lobby groups to test decisions taken by government agencies was applicable.

[13] We accept the principle, which is well established… We are prepared to assume too that the trust did not act for pecuniary gain. The question is whether it has acted reasonably.

[14] As to that, we observe that only after the late intervention of former counsel was the case sensibly articulated in the High Court.

Even then, it had no prospect of success, both because of the inherent difficulty of challenging a decision of this kind and because the challenge turned on disputed facts which were not susceptible to determination on judicial review.

By way of illustration, we observe that the trust initially characterised NIWA’s temperature records as the official New Zealand record, but that allegation was abandoned in the High Court. It was also open to the Judge to conclude that the trust has mounted something of a crusade against NIWA’s records.

[15] In the circumstances, we are not persuaded that the Judge was wrong to refuse the trust a reduction in its liability for costs on public interest grounds. On the contrary, we agree with him that the trust did not act reasonably.

bill November 12, 2013 at 12:40 pm

Wow!

This will be a number one news item at Watts’ and the Sticky Bishop’s, right? ;-)

Richard Christie November 12, 2013 at 7:35 pm

Naturally, this will be a great disappointment for the local Flat Earth Society, which had expressed heartfelt and steadfast support for NZCSET’s case.

It would be interesting to hear the society’s reaction to the news.

Rob Taylor November 12, 2013 at 1:32 pm

Yep, any day now, Bill. I’m also sure that James Delingpole is whipping himself into a righteous frenzy over this … oh, wait, he does that anyway?

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