Bill Wilson’s private appointment to Supreme Court

“Friends of Bill W” is taking on a new meaning after the meteoric rise of Bill Wilson to the New Zealand Supreme Court bench this year.

Less than two years ago, Mr Wilson QC was sitting in his law office trying to figure out where his next paying client was coming from.  Not that Wilson needed the money.  His Rich Hill Stud Farm – which he owned with fellow Queen’s Counsel Alan Galbraith – was printing money, returning to each of them roughly a million dollars per year.  Compared to this, his new $400,000 yearly salary as a Judge could be considered a paltry sum, even if Justice Wilson now gets chauffered around Wellington in a limousine and has all his lunches catered.

But Deputy Prime Minister, Finance Minister and Treaty of Waitangi Negotiations Minister Michael Cullen took a fancy to the jovial good old-boy lawyer in Cullen’s fourth ministerial capacity as Attorney General.  At least, Dr Cullen thought Wilson was jovial.  This was a nice trait for a judge.  Or perhaps it was his passion for horses, a commonly shared interest of New Zealand judges.  Perhaps this is why, in February 2007, Mr Wilson was plucked from his lawyer desk for a plum Court of Appeal appointment.  I say ‘perhaps’ because the actual judicial appointment procedure in New Zealand has become as mysterious as it seems straightforward.

In the official Ministry of Justice website, it is stated “In New Zealand all judges are appointed by the Governor-General. For appointments to the High Court, Court of Appeal and Supreme Court, the Governor-General is advised by the Attorney-General who, by convention, receives advice from the Solicitor-General and the Chief Justice.”

However, at Bill Wilson’s recent inauguration to the Supreme Court, Chief Justice Sian Elias reportedly introduced Justice Wilson by qualifying that, while she disapproved of the way he was appointed, he was welcomed to their exclusive club.  The Governor General’s Public Affairs Officer Anthony Paltridge confirmed this week that the Governor General’s role is more symbolic than functional, with the Governor General acting on the advice of Parliamentary representatives in fulfilling his Head of State role.  On judicial appointments, the Attorney General Michael Cullen and his then-green protégé David Collins were the two who ensured Bill W was strapped in for his rocket ride up the ladder of judicial success, as these gentlemen are for all High Court appointments.  As stated again on the Ministry of Justice website, “The Attorney-General places great importance on maintaining the quality and integrity of the judiciary. Putting the responsibility for all these appointments in the hands of the Attorney-General is intended to help to ensure a consistent and principled approach to these important decisions. In the case of appointments to the Court of Appeal and the High Court, the administrative process is carried out under the direction of the Solicitor-General.”

What relevant factors Michael Cullen considered is a complete mystery.  Repeated attempts by kiwisfirst and a former MP to obtain information as to what factors were considered in Wilson’s judicial appointment, how the selection process eventuated, or even who else was considered, have been met with a wall of silence.  Cullen’s Press Secretary Chris Ritchie responded to kiwisfirst that this information cannot be forced out because the Attorney General’s judicial selection process is exempted from the Official Information Act.  The cloak of total secrecy which prevents the slightest peek into how or why this man went from lawyer to Supreme Court judge in less than two years is unparalleled in any other function of government ,or private business for that matter. It begs the obvious question: is this how we should be picking our highest court judges?

By most accounts, Justice Wilson is an average lawyer of average intelligence.  One curious thing he had going for him though was that he had worked his way into various high security and government-sensitive duties under the current Labour government.  He also had powerful friends, which did not hurt.  Before long, in a historical blink of an eye, an average lawyer becomes a Supreme Court judge in New Zealand!

It is not the unprecedented promotion of Bill Wilson that is getting the most attention these days.  As first forewarned by kiwisfirst shortly after Bill Wilson’s appointment to the Court of Appeal, Justice Wilson was predicted to have trouble reconciling (as most lawyers do) his well-established habit of proactively furthering private interests of his mates and his own with his new sworn oath of impartiallity.  Having leap-frogged over District Court Judges, Associate Judges and High Court Judges in his initial appointment, a lawyer who virtually wakes up one day to find other judges bowing to him poses particular peril to promoting the equitable interests of natural justice for all citizens.  Virtually unlimited power without oversight has an almost limitless corrupting influence.  No doubt Wilson J was aware that the office set up to hold judges accountable for misconduct – the Judicial Conduct Commissioner – was 0 for 300 in deeming judicial complaints it had received worthy of a mere investigation since its formation. But we are getting ahead of ourselves.

In the case of Bill Wilson J, this has now been demonstrated.  One of the first Court of Appeal cases Wilson J sat on was the appeal of a High Court decision by the Wool Board against a ruling in favour of Saxmere Company Limited (a super-fine wool exporter). {CA288/05 [2007] NZCA 349}.  This was heard on 2 April 2007 and the eventual decision overturned the High Court ruling of Forrest Miller J, unanimously ruling in favour of the Wool Board on four distinct grounds.  Saxmere and its principal Peter Radford were saddled with approximately $100,000 in Court costs in addition to the loss.  Section 6 of the Wool Board Act 1997, as passed by Parliament, had seemed so clear in promoting the interests of fine wool exporters to market their products, both to Radford’s lawyers and Justice Miller.  Radford was wounded and puzzled.  It seemed to him Justices Wilson and Will Young had little interest during the hearing, but he did not know why.

Serendipity would intervene when Mr Radford spoke later about his case to a lawyer acquaintance who informed him the lead lawyer for the Wool Board, Alan Galbraith QC (right in photo), was the joint partner with Justice Wilson (left in photo) in one of the largest horse-breeding operations in New Zealand, namely Rich Hill Limited.  A check by Radford’s solicitor of the Companies Office records indeed showed Wilson and Galbraith as 50/50 partners in the venture.  Radford had noticed Galbraith had not been involved in the case until it was heard before his long-term business partner Justice Wilson at the Court of Appeal level.  Nor was Galbraith involved in opposing Radford’s application for leave to the Supreme Court (which was denied).

With this new information, Radford was devastated and his faith in an impartial Court justice soundly shaken.  As Peter Radford now alleges in his 21 August 2008 affidavit lodged with the Supreme Court, in support of leave to overturn the judgment of the Court of Appeal for perceived bias, the law compelled Wilson to recuse himself from hearing the case.  It is acknowledged that Wilson J approached Radford’s counsel Francis Cooke QC shortly before the appeal to divulge that he had a shared investment in bloodstock with opposing counsel, but the extensive financial and intimate degree of the active business relationship was not disclosed.  In fact, it was downplayed.

The certainty of the conflict of interest in Bill Wilson J then deciding the appeal was underscored by a complaint against Wilson J to the Judicial Conduct Commissioner Ian Haynes, supported by the legal opinion of Legal Ethics Professor Duncan Webb of Canterbury University.  As has become his custom, Judicial Conduct Commissioner Haynes responded by claiming he had no jurisdiction over the alleged misconduct and tried to dismiss the complaint accordingly.  The Professor cogently and politely corrected him.  Mr Haynes was thereby forced to get Justice Wilson’s response to the complaint, but – when he sought it – Wilson J responded that he needed to refer to the case file first.  Why this was deemed necessary before addressing a charge of conflict of interest is not clear.   The next part is clear, however.  The 25 file case at the Court of Appeal went missing!  So, unfortunately, Justice Wilson could not respond until the parties duplicated the Court file – which they did.

In days past, Commissioner Haynes would have simply gone to his ‘go-to girl’ Ailsa Duffy QC (right) who, for the first two years Haynes held the office, regularly supplied “independent” legal opinions at Haynes’ request to decide whether the more troublesome judicial misconduct complaints merited investigation.  Ms Duffy never disappointed.  Each and every time she found no merit to the formal complaints.  This is significant legally.  Duffy did not have the statutory duty to expose judicial misconduct that Haynes does.  Nothing prevented Haynes, on the other hand, from solely relying on Duffy’s advice to dismiss a complaint, which he regularly did.

An Official Information Act request by kiwisfirst last year to determine how well Ms Duffy was paid by the JCC for these independent opinions was rejected on the basis the Office of the JCC is exempt from the OIA.  Anyway, it didn’t matter now.  Ms Duffy obvious proved her worth.  Ailsa Duffy was appointed High Court Justice Ailsa Duffy earlier this year.

Judicial Conduct Commissioner Haynes did the only thing left for him to do: he took an extended overseas holiday.

Attorney General Michael Cullen was equally well informed as to Wilson’s conflict of interest and was directly approached by former MP Ian Ewen-Street, who requested Cullen fulfill his duty as Attorney General to “maintain the rule of law” and correct the perceived bias by Wilson sitting on the case.  Two issues were at stake: the punishment of Wilson J for not acting lawfully under the circumstances and the correction of the miscarriage of justice which had occurred as a result.  Dr Cullen failed to respond to Mr Ewen-Street and apparently did nothing even when he knew the story was going to be presented to the media.

Dr Cullen had obviously seen it all before.  The media in New Zealand can be counted on to be quite reticent in reporting judicial misconduct.  As secret as Dr Cullen’s selection criteria had been on Wilson’s appointment to the Court of Appeal and then to the Supreme Court, it was clear the Attorney General had not put emphasis on Judicial appointment criteria espoused on the Ministry of Justice website, namely  Qualities of character: Personal qualities of character include personal honesty and integrity, open mindedness and impartiality, courtesy, patience and social sensitivity, good judgement and common sense, the ability to work hard, to listen and concentrate, collegiality, breadth of vision, independence, and acceptance of public scrutiny.”

The reality is that Dr Cullen was not inclined to take action that would expose his singular responsibility for appointing a man of such flawed character to the Supreme Court of New Zealand.  And because no judge has been removed from the Bench for misconduct in New Zealand history, Judge Wilson will likely not have to worry about continuing on in the approach he personally feels comfortable with.

But it was the actions of the Solicitor General David Collins, who shares this statutory obligation to uphold the rule of law and natural justice in New Zealand, which left the parties gobsmacked.  When pressure started to build toward Parliament and the Attorney General in particular, S-G Collins claimed the matter was sub judice (active before the Courts).  Therefore, the executive and legislative branches were prohibited from taking action.  The problem was this claim by Collins was simply untrue.  Not coincidentally, David Collins had used the same false claim to kill a Parliamentary investigation into alleged Judicial Misconduct by Judith Potter J in August 2007, so false claims to government authorities were a proven road to success for him.  It is one thing for wantabe judges like Collins to automatically close ranks to protect judges.  But Collins knew the particulars of Wilson J’ conflict of interest, he reasonably understood the activist way the Judge had interpreted Section 6 of the Wool Board Act 1997, yet now he was working hard to cover it all up.

Feeling they had little option left, Saxmere, through their lawyer Sue Grey, joined the Attorney General two weeks ago in a special leave application to the Supreme Court, asking for the Wilson J verdict be thrown out for perceived bias due to his discovered conflict of interest.  Their story found its way to the pages of the Sunday Star Times on 23 August 2008 after journalist Nicky Hager of Wellington looked at the evidence and wrote a reasonably insightful article into Judge Wilson’s failings.  After refusing for four months to address the apparent judicial bias, David Collins took one day after the story broke to call Ms Grey’s boss Al Morrison at the Department of Conservation and apparently direct that she drop the complaint and go quiet or she would lose her job with the Department of Conservation.

This is quite disturbing if it was an isolated incident, but it was not.  In June 2007, just two months after deciding the Wool Board appeal, Wilson J sat on another appeal for a trial by jury (Siemer v Fardell CA172/07).   In support of their appeal against a judge alone trial, Vince and Jane Siemer cited specific evidence of Judges concealing evidence in the case, as well as the fact that Alan Galbraith QC had three years earlier – in response to a formal complaint to the Auckland District Law Society against Robert Fardell QC by Mr and Mrs Siemer – sent a letter stating he had conducted his own investigation into Mr Fardell’s alleged conflict of interest and taking a retainer without a trust account.  Mr Galbraith’s letter to the ADLS concluded his investigation found no merit to the complaint.  The letter gave the implication that Galbraith had at least spoken to the Siemers.  He had not.  Only a year after the ADLS had dismissed the complaint on the strength of Galbraith’s “investigation” did Siemers even find out about his letter.  By this time, they were barred by ADLS policy that all complaint decisions are final.

It was little solace that Fardell paid Galbraith very well, though it is unlikely the ADLS was aware Mr Fardell paid for Mr Galbraith’s input.  However, in June 2007, before the Court of Appeal, it all was perfectly clear.  Here again, Wilson J did not disclose the fact that Galbraith was his long-term 50/50 business partner.   The Court dismissed Mr & Mrs Siemer’s appeal and awarded substantial costs against them for bringing it.  Siemers sought leave to the Supreme Court, which refused to hear the application on the basis a ‘belief that judges as a class are biased’ cannot succeed (a ground never alleged by Siemers), relying on an unspecified House of Lords decision which purportedly said as much.

In a ringing and final irony, Wilson J also sat on the Court of Appeal panel in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495.  In that decision – rendered before the Wilson J decision in the Saxmere case – the Court of Appeal determined judicial conflict of interest required a two-stage investigation. First, (outlined in this Court of Appeal ruling) it is necessary for the Court, by rigorous inquiry, to establish the exact circumstances that had a direct bearing on the suggestion that a Judge was, or might be seen to be, biased. The second inquiry was as to whether those circumstances as established might lead a fair-minded lay observer reasonably to apprehend that the Judge might not bring an impartial mind to the resolution of the case.  It is very nice to recognise this.  The hypocrisy is that a New Zealand Judge could seemingly stand for these principles as a matter of doctrine within weeks of sitting on two cases where he personally had violated them.

The axiom “Justice must not only be done but must be manifestly and undoubtedly be seen to be done” is emblazoned on the New Zealand Court of Appeal window.  The question now is whether New Zealanders will ever see this being the guiding practice of the New Zealand Courts where judges are selected in secret, these same judges fail to disclose their conflicts of interest without consequence and a great many court cases are shrouded in suppression orders.