SS Clayton affairs

With his smiling mug framed by the panoramic Wellington view out his law firm window, the man being interviewed literally and figuratively looks like a man on top of the world. “Meet Sir David Gascoigne, Judicial Conduct Commissioner”, is the cameo lead in to last month’s New Zealand Herald’s’what-passes-as-informative-news-story’.

After accurately reflecting the JCC’s own statistics showing complaints of misconduct against judges are up more than 300% in 5 years, the yarn dispenses rose-coloured glasses to its readers and gets into at least one Bigfoot sighting.

In the logic which New Zealand bureaucrats are known for, the Commissioner counted the number of working days in the year, multiplied it by the number of judges and then multiplied it again by 5 to profess the result – 293,250 – is the number of “decisions” made by New Zealand judges last year. This, he says, demonstrates the number of complaints he receives pales in comparison to the amount of work judges do.
The reporter did not question the claim.

Considering the 40 judges of the New Zealand High Court issued only 921 recorded judgments through April of this year – which extrapolates to 69 recorded decisions per judge per year – kiwisfirst did question Commissioner Gascoigne on where he obtained his colossal data.

The knighted one – still beholden as a senior partner of mega lawfirm Minter Ellison to the same noble judges whose conduct he in turn oversees – responded through his horseman that this was only intended as a “rough estimate”, before elaborating “some of the figures he used may be significantly over or under inflated (for example, the average number of decisions per day, taken across the whole judiciary)”.

A further inquiry as to where the “rough estimate” derived and whether it was appropriate for the Commish to publicly defend judges given his “independent” statutory role to hold them accountable for their conduct brought this polite response:    “the Commissioner was merely trying to get across to the journalist the point that the ratio of complaints compared to the number of interactions people have with the judiciary is very low. He used a rough estimate of a possible number of decisions. Obviously there are a great deal more occasions when judges interact with people and decisions are not issued. The Commissioner does appreciate the distinction between issues relating to judicial conduct, on the one hand, and the substance of decisions, on the other. He, and I, also consider that little purpose would be served by continuing this exchange of correspondence.”

The unfortunate reality is any lawyer who makes a complaint to the JCC places their career in jeopardy, and this is widely known in the insular NZ legal community. Greg King, Chris Comeskey, Evgeny Orlov and Dr Frank Deliu have all been the victims of Law Society investigations prompted by complaints about judges’ conduct. In one audacious case, then-Chief High Court Justice Anthony Randerson wrote a letter to the Law Society asking for disciplinary action to be taken against Deliu and Orlov for making a complaint about Rhys Harrison J.  Deliu, in turn, filed a complaint against Randerson J alleging interference with a statutory complaint process Parliament set up for lawyers, including secreting privileged correspondence from the JCC and using taxpayer-purchased court letterhead to engage in the interference. (Months later Gascoigne dismissed the complaint as “vexatious” without obtaining a reply from Randerson).

It is not only the Stalinesque retribution lawyers face. The most disturbing evidence of judicial misconduct is routinely “fixed”. Before the JCC existed, the same Judge Randerson dismissed a complaint against fellow judge Judy Potter for ruling in favour of her brother-in-law in an undisclosed conflict on the basis her ruling was “procedural” and did not go to the merits of the case!
As Commissioner, Gascoigne has avoided such rationalisation altogether, dismissing at least a half dozen complaints of equally serious judicial conflicts of interest by simply claiming section 8(2) of the Judicial Conduct Commissioner and Judicial Panel Act 2004 prevents him from “challenging or calling into question the legality or correctness of any instruction, direction, order, judgment, or other decision given or made by a judge in relation to any legal proceedings”.

It is a statutory regime where judicial conduct is so narrowly defined that judicial rape is classed “legal research”, off limits to the Commissioner’s authority over “conduct”. Ninety percent of the complaints are dismissed without investigation or comment from the judge involved. Intrepid Human Rights Lawyer Tony Ellis intones what informed lawyers have learned about the process in general – making complaints to the JCC “is a waste of time as there is no effective remedy”.

It is the unsuspecting public who remain convinced the JCC provides legitimate oversight. In the right company, Gascoigne likes to mention that he referred 3 complaints to the Attorney General in 2010. What is not mentioned is those 3 complaints all dealt with former Justice Bill Wilson’s financial conflict with respondent’s counsel in the Disco v Saxmere appeal but, more importantly, the JCC twice dismissed those complaints before retired Court of Appeal Judge Sir Ted Thomas (the maker of one of the complaints) spilled the beans to the New Zealand Herald.

The instilling discipline of the press is something Mr Gascoigne has since sought to neutralise with convincing talks to unquestioning reporters about how difficult his job is due to complainants who misguidedly use his office as a vehicle to gripe about a judge making a decision they disagree with. In his latest campaign, the Commish also wanted the public to know he has yet to find a genuinely corrupt judge.

Whether he is blind to corruption or simply has a unique standard, it is a personal blessing that Mr Gascoigne has never seen evidence of a corrupt judge in New Zealand. Maintaining himself as the beau of the bureaucratic ball depends on him never finding a corrupt judge.