There is no denying Judicial Conduct Commissioner David Gascoigne has many friends in the judiciary where he has statutory oversight in respect to judicial misconduct. In addition to being a senior partner in one of New Zealand’s largest law firms, his knighthood adds a familial quotient in a court system where such honorary titles run like water.
Few judges are willing to admit their relationship with Mr Gascoigne when ruling in his favour in matters before the Court. Lawyers often are aware of the resultant judicial conflicts but routinely ignore it in a system governed more by “go along to get along” rather than any laws.
This is what makes Barrister Liesle Theron’s actions this week in a judicial review of Mr Gascoigne so commendable. Ms Theron (pictured) was apparently so embarrassed by Justice Denis Clifford’s attempt to steamroll over his conflict of interest that she called the judge out after he refused to disqualify himself – and she was Gascoigne’s lawyer!
The irony was not lost in what is a judicial review of Mr Gascoigne’s refusal to consider his own conflict of interest before dismissing a 2013 judicial misconduct complaint against Justice Robert Dobson for unlawfully fiddling with the Court record to secretly strike out another judicial review of Gascoigne. In that complaint, Gascoigne ruled the governing Judicial Conduct Commissioner and Judicial Panel Act 2004 compelled him to dismiss the complaint against Dobson on grounds it was outside his jurisdiction, thereby making his past association with Justice Dobson an immaterial consideration.
Gascoigne had earlier upheld a complaint concerning Justice Dobson’s belated disclosure of their past association prior to Dobson issuing a judgment in favour of Gascoigne but, in respect to remedy, Gascoigne decided to exercise his right under 15A of the Act to take no action.
Last week Justice Clifford issued a Minute which proposed to establish new procedures in the judicial review of Gascoigne’s dismissal of the Dobson complaint. At the appearance on Monday, the judge dismissed an application from the plaintiff for his disqualification without allowing argument. After the plaintiff left in protest, Ms Theron reminded Clifford J that the judge’s association with her client was sufficient to compel judicial disqualification before, making it clear she did not feel comfortable continuing.
Only then did Judge Clifford disqualify himself, apparently having forgotten up until that point the defendant was his friend.
Thank God, one lawyer was honest enough to not take a certain victory which would have no doubt been handed to her by a biased judge.