Parker David: Urgent Debates — Resignation of Supreme Court Judge—Justice Wilson 
Parker David: Urgent Debates — Resignation of Supreme Court Judge—Justice Wilson 
[Volume:668;Page:15086] 
Hon DAVID PARKER (Labour) 
: 
 I move  
That the House take note of a matter of urgent public importance 
. The seriousness of this issue was highlighted by the Hon Judith Collins when she said in her press release that in respect of the acceptance of the resignation of Justice Wilson the payment of close to $900000 to him which comprised a $400000 golden handshake and $475000 in costs was unprecedented and was very relevant to the reputation of the judiciary. 
It is important that we put on record the history of this affair which is long protracted and quite complex. I want to start by recording the background. There was a decision of the Court of Appeal in the case of Saxmere and Radford against the Wool Board Disestablishment Co. where Justice Wilson participated in the hearing and delivered a judgment despite the fact that he had a business relationship with Rich Hill Ltd and a business relationship through that entity with counsel acting in that case. The case went against Saxmere and Radford and they were disappointed in the result. They then got wind of a background relationship between the judge and counsel appearing and expressed their concerns. 
The principle at stake here is not whether a judge is biased or acts in a biased way. For a start that can seldom be proved even if it is the case and I am not suggesting that there is proof of actual bias in this case. But justice has to be done by ensuring that parties to any dispute being settled by the judiciary feel they have been dealt with fairly. For that to be maintained it is clear from the authorities that judges should recuse themselves from a hearing where they have some sort of relationship either with a party to the litigation or with counsel in the litigation that would cause a fair-minded observer to think that they might not be impartial. 
It was against that background that Saxmere and Radford applied to the Supreme Court some time later when they got wind of these things for the decision of the Court of Appeal to be set aside. The Attorney-General decided to take part in that process. The Attorney-General’s submission to the Supreme Court was that there was nothing to worry about that the disclosures that had by then been made by Justice Wilson should be taken at face value that there was no need to look any further and that the case decision should stand. I am not too critical of the decision of the Attorney-General at that stage based on his information at that time. 
On the basis of that and the information that was then before the Supreme Court the Supreme Court rejected the application by Saxmere and Radford for the decision to be recalled. That was on 3 July 2009. As a consequence Saxmere and Radford had a costs award against them of $15000 plus disbursements which would have taken that amount higher. Soon thereafter Saxmere and Radford discovered that there was another provision in legislation governing the duty of judges not to have other business roles and on that basis they went back and inquired of the Supreme Court whether this decision could be recalled. They were not aware of other background information at that stage as to the depth of the business relationship between Justice Wilson Rich Hill Ltd and counsel in the case. 
Indeed I think it was a coincidence that during the intervening period before the case was eventually recalled a second time in the Supreme Court Justice Thomas—I think concerned about the original Supreme Court decision based on his own knowledge—off his own bat wrote a letter to the Chief Justice and the Attorney-General to say that there were other matters relating to Justice Wilson’s business relationships with counsel and a company that they shared ownership interest in that ought to have been disclosed to the court. That was in a letter dated 27 July 2009 sent to the Chief Justice and the Attorney-General. It was known to the Attorney-General and within the Supreme Court to at least the Chief Justice; I suspect—although I do not know—it may also have been discussed by the Chief Justice with other members of the Supreme Court. 
This is the mistake that was made then. No one told Radford or Saxmere. So Radford and Saxmere who as we now know had suffered the injustice were not told what Justice Thomas had told the Chief Justice and the Attorney-General. That was a bad mistake made by the system—a bad mistake—because the litigant who was adversely affected by the decision and who was complaining about the appearance of bias and the refusal of the judge to recuse himself from the case had the greatest interest in knowing. When this matter came back before the Supreme Court Saxmere and Radford still did not know what was in the letter from Justice Thomas to the Chief Justice. The Chief Justice had responded to Justice Thomas and the Attorney-General saying that the matter was in hand but it seems that if it was in hand it must have been through some separate process which I suggest was improper. It should have gone in a process sense through the Supreme Court and been openly shown to counsel acting for Saxmere and Radford so they could protect their clients’ interests. 
What else was happening during that period? Well I know from having spoken to one of the counsel for Saxmere and Radford that they were under pressure from the Wool Board Disestablishment Co. not to push this matter any further. They were having threats made against them that costs would be sought both against Saxmere and Radford and personally against counsel if they pushed this any further despite the fact that they were pursuing something that was their right to pursue and that we now know the Supreme Court agrees was a just complaint because eventually the Supreme Court decided that Justice Wilson should have recused himself and that accordingly the Court of Appeal decision could not stand and the matter was remitted to the Court of Appeal. 
The other thing that went wrong was that the Attorney-General having received the information from Justice Thomas and the information from the Chief Justice took part in a titular sense in respect of the second Supreme Court application for the judgment to be set aside but did not correct the information that lay on record from the first application for rehearing as part of which as I have already said the Attorney-General had said all was well. The Attorney-General did not correct the record in light of what he subsequently knew was the depth of the relationship between Justice Wilson and counsel. 
Where does this lead us? I do not have time to go into all of it but some things here need to be tidied up in the judicial branch of government. This has been a very difficult issue for the Supreme Court to deal with but it does have some expertise in this matter. How do I know? Because the Court of Appeal in the case  
Muir v Commissioner of Inland Revenue 
 has considered what the appropriate test is for judicial bias in New Zealand. That decision was delivered by one of the world’s experts on judicial recusal. Indeed Justice Hammond is the author of a book entitled  
Judicial Recusal: Principles Process and Problems 
 which came out within the last year. It is an internationally regarded text on this very issue. He wrote the judgment on behalf of the Court of Appeal in  
Muir v Commissioner of Inland Revenue 
. Who else sat on that case? Justice Wilson. So Justice Wilson knew the rules or should have known the rules. He should have known the rules. I find it very hard to believe that he did not know the rules but if he did not then he sure as heck should have known those rules. Justice Hammond has expertise in these issues. These issues need to be sorted out. 
Still at large in New Zealand is the issue of business relationships between judges and counsel. Judges may have friendships with counsel—that is obviously not a step too far—but if one goes further and has a business relationship is that too far? This is a very difficult issue for the judiciary to deal with in part because New Zealand is a small country and in part because we now know from things we have seen in the media that there are business relationships between other judges including the Chief Justice and senior counsel relating to horse partnerships. The courts have to ask themselves what a fair-minded third party would believe when the decision in their case goes against them and they discover that counsel for an opposing party had a relationship through a horse partnership with a Supreme Court judge. I have to say that if I were a litigant who lost I would be questioning whether I had been dealt with fairly. I think that as a reasonably fair-minded third party I would be asking that question. 
It is time for there to be some transparency in these rules. We have somewhat belatedly discovered that New Zealand does have some rules surrounding judicial conduct. They were promulgated in 2003 but were for some reason kept secret in New Zealand until last year. Indeed the decision of the Court of Appeal in  
Muir v Commissioner of Inland Revenue 
 did not make reference to the New Zealand guidelines; it referred instead to the Australian guidelines which happen to be very similar. It is strange that the New Zealand guidelines were not referred to in the Muir decision. So I call upon the justices at the most senior level in New Zealand to be reasonably transparent about where they get to as to what level of relationship between judges and counsel is appropriate or inappropriate when it involves business relationships. I suggest given we have this expert Justice Hammond in the Court of Appeal that they involve him. I think they also have to include all of the justices of the Supreme Court and perhaps they should also take some advice from the Law Commission. 
Some mistakes have been made with regard to the Hon Judith Collins. The judicial conduct complaint report by Sir David Gascoigne was imperfect. It did not deal with some of the complaints that had been made by Saxmere and it was too general in respect of the complaints it made of Justice Wilson in respect of those that it did consider. It was on that later ground that the courts and the judicial review proceedings brought by Justice Wilson said that the findings of the judicial conduct complaints process were deficient. That could have been fixed by the Hon Judith Collins because she was warned of that very issue by counsel for Saxmere and Radford after the Judicial Conduct Commissioner’s report came back. 
It is a very sad day when we have this taint on our judiciary—and it is a taint. We have to acknowledge that it is a taint. I think in the end we came to the right decision whereby the judgment was recalled. There is a question as to why it is taking so long for the Court of Appeal to deliver its judgment in respect of the rehearing of the Saxmere and Radford case against the Wool Board Disestablishment Co. I do hope the occasion of the delay is not the resignation of Justice Wilson. 
I also say it is inappropriate to pay golden handshakes and large amounts of costs on a solicitor-client basis. The costs of $475000 seem patently excessive to me and a $400000 golden handshake in respect of someone who it appears has erred is inappropriate. This is a very serious matter. There are issues as to whether the Attorney-General should have gone back to the Supreme Court and said he had more information and that Saxmere Radford and the court needed to know it officially rather than just through back-office routes. There is also the issue as to whether Judith Collins should have listened to the warning she received from counsel for Saxmere and Radford that the judicial complaint that was going to be forwarded was sufficiently particularised and did not cover some of the issues that have been raised by Radford and Saxmere. 
The other issues that need to be looked at are what happened to the Wool Board Disestablishment Co. money—there is still some murkiness around that—and also why the Solicitor-General the Attorney-General or some arm of Government took this case out personally on the person who was doing a public good and caused the dismissal of Sue Grey.