There are many honest lawyers in New Zealand, though it often seems few of them sit as judges. The cloak-and-dagger process of judicial appointments does little to improve this quotient. Nor does the surprising statistic that no judge has ever been removed from the NZ bench for misconduct – – in judicial history!
New Zealand Supreme Court Justice Bill Wilson just may become the first. Kiwisfirst confirmed this week that Judge Bill Wilson violated longstanding New Zealand law when he continued to play an active business role in his horse breeding company after his appointment to the Court of Appeal. Wilson minimally failed to notify the Chief High Court Judge of his continued commercial involvement. Section 4(2A) of the Judicature Act prevents a judge from undertaking any 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. The breach of his judicial oath was revealed in a recall application by south island woolgrower Saxmere Company Limited and three other appellants in a Supreme Court application filed on 28 July 2009. Last year, Saxmere filed a complaint that Judge Wilson was personally promoting his company Rich Hill Limited on the company’s website. The Judge was pictured along with the other director of the private company, referring to his judicial title.
A senior lawyer who prefers to remain anonymous stated “This goes beyond a technical violation and bad taste. The clear inference is that Judge Wilson was promoting his judicial influence to advance his private company.” Though Wilson’s self-promoting image has recently been removed from the Rich Hill Ltd. website, Wilson J remains a Director, as well as a 50% shareholder. The operation had been valued at around $10 million. Wilson makes $430,000 per year as a judge. In a related action, the New Zealand Supreme Court ruled last month that Justice Wilson met his technical requirements for disclosure when he informed Saxmere’s counsel that he and barrister Alan Galbraith QC had “a mutual interest in a race horse” before Saxmere appeared at the Court of Appeal in 2007. Mr. Galbraith was the opposing counsel where the Court of Appeal sided with Galbraith’s client, reversing an earlier High Court Judgment in favour of Saxmere. Mr Galbraith is the other 50% shareholder in Rich Hill Ltd (pictured in the right of photo next to Judge Wilson).
In a 19 December 2008 statement to fellow members of the Supreme Court, Justice Wilson admitted he considered Saxmere would have a problem with his close relationship to Galbraith if they knew about it ahead of hearing. Nonetheless, Wilson J claimed he did not disclose this relationship because he considered it was “not appropriate to make a formal disclosure”. The Supreme Court agreed with their fellow judge, declaring they were convinced there was no issue of apparent bias by Wilson. As such, they concluded proper judicial disclosure would not have made a difference.
Former Member of Parliament Ian Ewen-Street is publicly pushing the new issue with the Supreme Court, saying the previous Supreme Court application concerning Wilson’s apparent bias overlooked this law regulating the conduct of judges. In addition to Saxmere’s new application that the Supreme Court throw out Wilson’s ruling in their unsuccessful appeal, a separate complaint was recently filed with the Office of the Judicial Conduct Commissioner. In brief, Saxmere is asking the Supreme Court to recall its judgment because Section 4(2A) was not dealt with in Judge Wilson’s earlier statement or the Court’s ruling, as well as for the Judicial Conduct Commissioner to find the Judge guilty of professional misconduct. It defies logic that any judge – let alone one on New Zealand’s highest court – could use his judicial position to promote private interests without penalty. That Wilson and his judicial peers do not seem bothered by his failure to minimally divulge his ongoing business activities indicates the mentality which seems to pervade the current court.
In addition to the detailed breach of his judicial oath, it was recently discovered that Wilson and Galbraith are mutually obligated on a mortgage. This was not addressed by Wilson in his statement to the Supreme Court. This revelation is also mentioned in the new application. It seriously undermines the earlier Supreme Court conclusion that Wilson had no such reliance upon Galbraith (see paragraph 25 of Judgment). Much more troubling, the Supreme Court whitewashed this evidence in the earlier proceeding, as evident by page 89 of the Supreme Court transcript. If Justice Wilson is held to account, it will have more to do with the NZ Courts’ waning ability to suppress scandalous information than the wholesomeness of past appointments. This should come as no surprise. In the only profession which is taught as part of their training to distort the truth, the statistic that no NZ judge has ever been removed from the bench for misconduct is comparable to winning the lottery. It is possible, but far from a plausible achievement. Crooked judges in North America, Australia and Europe are sent to prison. In New Zealand, they are above the law.
Consider this: the new Legal Complaints Review Officer has upheld 11 of 24 reported complaints or investigations against lawyers since his office began in February of this year. In contrast, the Judicial Conduct Commissioner has referred a grand total of “0” of the 300+ formal complaints he received against Judges to a panel investigation since his office was created in 2004. Departing JCC Ian Haynes’ reply would be that he did refer a small handful of these complaints to the “head of bench”. No matter that his office was created to circumvent this historically incestuous and impotent oversight – or that these referrals went nowhere. It has been mentioned that the recent scandal occurring with Justice Wilson is behind Ian Haynes abrupt departure last month. Whether this is true or not, the reality is this is a hot potato being thrown to his successor. Two of three current Members of Parliament contacted spoke candidly that Haynes was a judicial shill, one conceding it is difficult to buck the powerful Law Society to create any meaningful oversight of judges. Kiwisfirst has applied to the Court for a copy of all filings. Stay tuned for more information as the situation unfolds.