Now that High Court Judges John Wild, Graham Lang and Forrest Miller have sided with their compatriot to quash the Judicial Conduct Commissioner’s recommendation that a panel be convened to determine whether Supreme Court Justice Bill Wilson should be removed as a Judge, a simple review is advisable to see why this case is so important to every New Zealander.
Firstly, if judicial impartiality and good judgment are necessities in order for the public to have confidence in judicial decisions, the High Court undeniably lowered the bar on 28 September. The benefactor of their judicial dispensation is no less than a Judge on the highest court in New Zealand.
The following elementary facts were clear to everyone watching the Wilson train wreck unfold, including Their Honours Wild and company.
FACTS: Presiding Justice Bill Wilson failed to disclose his multi-million dollar horse stud partnership with Disco’s counsel (Alan Galbraith) in the Disco v Saxmere appeal. He also failed to disclose that, at the time of hearing, he and Mr Galbraith were co-purchasing another large tract of land together and the Judge was being pressed by Galbraith to repay a personal debt well over $100,000. Wilson J ruled in favour of Disco.
FACT: Galbraith was hired by Disco to represent them solely before the Court of Appeal panel which included Wilson. Disco had other counsel in the High Court and, later, at the Supreme Court level. Galbraith too failed to disclose his partnership with the judge or the judge’s indebtedness to him – as professional conduct rules require.
FACTS: Supreme Court Justice Wilson then failed to disclose he personally owed Bank of New Zealand over a million dollars, on floating terms, when presiding over the NZ Exchange Ltd v Bank of New Zealand appeal. Wilson J ruled in favour of his lender.
FACT: The conflicts of interest were so great in each of these cases that Wilson J was compelled by law to disqualify himself from presiding. He failed to do so in each case.
FACT: When questioned by the Supreme Court regarding the Saxmere appeal, Wilson misled the highest court on the material question, and concealed his indebtedness to Galbraith. To put this in perspective, barrister Chris Comeskey was recently struck off for 9 months as a lawyer for misleading the Court of Appeal – in an appeal he lost.
FACT: The Judicial Conduct Commissioner received three formal complaints regarding Wilson’s alleged misconduct in the Saxmere appeal (curiously, no Wilson complaint has seen the light of day yet regarding the BNZ appeal). One of these was by retired Court of Appeal Justice Sir Edmund Thomas – who was prior warned by past-President of the Bar Association James Farmer not to make the complaint. Dr Farmer stated in an email to Sir Thomas that he put personal loyalty before the integrity of the judicial system.
FACT: Supreme Court Chief Justice Sian Elias was aware of Wilson’s alleged deception in July 2009. She did nothing, even though the law compelled her to minimally intervene to grant one of New Zealand’s premier woolgrowers a new trial if the allegations proved true. Unnecessarily, bopth parties to the appeal were put through the tremendous cost of a recall application to the Supreme Court.
QUESTIONABLE FACT: Dr James Farmer, Alan Galbraith and even Wilson’s current counsel Colin Carruthers all approached Wilson to ask him to resign. Wilson refused. Carruthers now says this did not happen. In the next breath, he stated Wilson did not do anything wrong. Carruthers was paid $475,000 by the New Zealand taxpayer for his 5 months work defending the embattled, and now former, judge.
The Judicial Conduct Commissioner has been directed by Wild and company to reformulate his recommendation for a formal panel investigation into Wilson’s conduct and try his recommendation again, if he desires.
An interesting footnote to this discomforting debacle is that retired New South Wales Supreme Court Chief Justice Murray Gleeson was called over to independently appraise the situation last January. By insider’s reports, Judge Gleeson was appalled not only that Wilson’s conduct did not result in immediate action to restore the integrity of the Courts by removing him but, moreover, by the systemic self-protection mechanisms imposed by the NZ Supreme Court to insulate Judges from the law. Two clear examples concerned two of the few rules constraining judges’ conduct in office. The first was a mandate from the highest court that the Guidelines for Judicial Conduct were not enforceable and not to be made publicly available. The second was the Supreme Court’s refusal last year to address section 4 (2A) of the Judicature Act – a section which prohibits judges from holding other office or employment without expressed approval of the Chief High Court Judge. It surfaced that judges had universally ignored this law since its inception. More damning, Supreme Court Chief Justice Sian Elias appeared to be the worst offender.
Businesses universally conduct risk assessment on what countries to conduct operations in based upon many factors. Unquestionably, an impartial and just court system is high on any business’s checklist. As the Wilson case is allowed to fester amid evidence that NZ judges are placing themselves above the law and overtly demonstrating favoritism to their mates, the legitimate question is whether any business in a global economy would consider choosing this country of 4 million people to conduct business operations. The answer is increasingly found in the example of Saxmere, an important wool exporter and employer paying millions of dollars for justice in a court system which has demonstrated it has far more parochial interests than the health and future of the New Zealand economy and its citizens.