Supreme Court flip flop... Queen’s Counsels quiver... old friends part company... horseracing interests dissolve... charges of “apparent bias” upheld... Where will the inquiry into the conduct of Supreme Court judge Bill Wilson take us next?
The days are past when appointment to the judiciary compelled social and civic isolation,” according to the New Zealand Guidelines for Judicial Conduct. As the current inquiry into the conduct of Justice Wilson unfolds, you have to wonder whether such a categoric statement is correct.
The Judicial Conduct Commissioner, Sir David Gascoigne, is currently investigating complaints about Justice Wilson’s conduct as a member of a three judge panel in a 2007 Court of Appeal, in hearing of claims and counter-claims in a long-running dispute between Saxmere Company and the Wool Board Disestablishment Company [Disco].
The Court of Appeal had upheld Disco’s appeal against a High Court decision favouring Saxmere. Saxmere then applied to the Supreme Court seeking another hearing. It argued that there had been “apparent bias” against its case because of Justice Wilson’s business relationship with one of Disco’s counsel, Alan Galbraith QC, who was Wilson’s partner in a Waikato stud farm, Rich Hill Limited.
In July last year, the Supreme Court dismissed Saxmere’s application. Saxmere returned to the Supreme Court with fresh argument, and the Court was also provided with fresh information on Justice Wilson’s financial dealings with his Rich Hill Limited partner, Alan Galbraith.
The fresh argument related to a section of the Judicature Act, introduced in September 2008, that – as the Supreme Court recall decision put it – “both counsel and the Court itself overlooked or were unaware of”, and sections of the Guidelines for Judicial Conduct, “prepared for the assistance of New Zealand judges but not at that time [of the original hearing] publicly available.”
Section 4 [2][a] of the Judicature Act states that:
“A Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief High Court Judge is satisfied that the employment or other office is compatible with judicial office.”[Emphasis added].
The Guidelines for Judicial Conduct advise judges that:
“It is impossible to be categorical about relationships which give rise to disqualification but a Judge should always disqualify himself or herself whenever a party, lawyer or witness of disputed facts is a close blood relative or domestic partner of the Judge or a close relative of the Judge or where such person is a close friend or business associate of the Judge.” [Emphasis added].
The Supreme Court decided that neither of the fresh arguments justified a recall of its March 2009 decision. Still, it is staggering to hear that both the Supreme Court and counsel had previously “overlooked or were unaware of” section 4 [2][a] of the Judicature Act that “slid” into our law in 2008 [as Justice Blanchard put it], and that Guidelines for Judicial Conduct dated August 2005 were not publicly available by March last year.
The fresh information that did move the Supreme Court to recall its decision came from additional disclosures made to it by Justice Wilson, after it had delivered its first decision against Saxmere.
From these disclosures, the Court was able to deduce that Justice Wilson owed Alan Galbraith a sum of $74,249 on account of their partnership in Rich Hill Limited; that he had assumed responsibility for the payment of $168,555 to a Bank funding Rich Hill Limited; and that the stud farm company was borrowing more money to expand its land holdings.
On 27 November last year, the Court found that:
“...the judge and Mr Galbraith must have been reliant upon one another, during the very time the Saxmere judgment was reserved in the Court of Appeal … These circumstances, and in particular the first of them, would, if disclosed before the earlier hearing, have led the Court to the conclusion that the case of on apparent bias was made out.” The Court went on to remit Saxmere’s case against Disco for rehearing in the Court of Appeal
Subsequently, the New Zealand Herald reported that in August last year [between the two Supreme Court hearings] Wilson had quit his interests in the Rich Hill Stud and in three horse-owning partnerships with Galbraith, Chief Justice Dame Sian Elias and her husband Hugh Fletcher.
Meantime, Saxmere laid a complaint against Justice Wilson with the Judicial Conduct Commissioner, Sir David Gascoigne. So, we are now told by the Weekend Herald, has one of Wilson’s old friends, former Supreme Court judge, Sir Edmund [“Ted”] Thomas.
Commissioner Gascoigne and his associates“must keep confidential all matters that come to their knowledge in the performance of their functions”. However, the Herald and others have been able to quote large chunks of Sir Edmund’s letter of complaint, including his account of conversations about Wilson’s conduct with other concerned “old friends”, such as Queen’s Counsels Alan Galbraith, Jim Farmer and Colin Carruthers, as well as Dame Sian Elias. According to the Herald, Sir Edmund says:
“As a past appellate judge, and one who has sat on the Supreme Court, I can testify that I would find it difficult to work alongside Justice Wilson.”
According to my Pundit colleague Andrew Geddis, Commissioner Gascoigne has just three options: to dismiss the complaints against Justice Wilson; to refer them to the Chief Justice [Wilson’s former racehorse-owning partner]; or to recommend that the Attorney-General Chris Finlayson[Wilson’s former legal partner at Bell Gully] appoint a Judicial Conduct Panel to inquire into them and provide a report on whether it believes the complaint justifies the judge being removed from office.
Under the circumstances, none of these options seem particularly appropriate as a means of reassuring the public of the independence and impartiality of our judiciary.
So, where do we go from here? Back to the days of social and civic isolation for our judges? Back to the Privy Council in London? On to a new, robust and transparent system of a public register of judge’s interests? Or do we turn a blind eye to the whole messy business and hope for the best?
Place your bets, ladies and gentlemen, place your bets.