So what’s to be done to judge in bias case?

There’s the whiff of something distinctly rotten wafting from our justice system.

Justice Minister Simon Power has hastened to attend to the source of some of the pong. But not all of it.

He is to ask Cabinet to agree to sweeping changes to our legal aid service

after revelations hundreds of crooked lawyers are ripping off taxpayers.


He has vowed “urgent structural change” to shore up public confidence in the system.

Power has asked justice officials to compile an urgent report on how quickly the Legal Services Agency can be disestablished and folded into the Ministry of Justice.

Cabinet will be considering the report today, Alf has been advised.

According to the newspapers –

The agency, set up in 1991, doled out $124 million to legal-aid lawyers last year for 95,000 applications.

In a damning report on its performance, Dame Margaret Bazley says that potentially tens of millions of dollars have been pocketed fraudulently by lawyers “gaming the system”. At least 200 lawyers – possibly more – were involved in the practice, which Bazley described yesterday as “unscrupulous and corrupt”.

In one of the hardest-hitting reports in Bazley’s long career, the public service troubleshooter slated both the agency and the Law Society, saying they had a “dysfunctional” relationship and appeared either unable or unwilling to stop abuses in the system.

Fair to say, questions have been raised about the rigour of the investigation that led to those findings.

But to cut to the chase, Bazley is recommending a mix of public and privately-provided legal aid, with a public defender model using a pool of experienced lawyers set up in Auckland, Wellington, and Christchurch.

In other centres, legal aid lawyers should be grouped under a senior lawyer responsible for quality. She recommended that legal aid work should be bulk-funded.

Repeat clients or those who dismissed their counsel should lose the right to appoint their own lawyer, Bazley said, while high-cost cases such as murder trials should be overseen by a senior public servant.

But let’s put the legal aid system aside for a moment.

Something more disquieting has been flushed into the open in recent days.

The highest court in the land has recalled a judgment – a rare event – after one of its judges disclosed that he effectively owed nearly a quarter of a million dollars to a QC who appeared before him in the Appeal Court.

In addition, a racing industry company, Rich Hill Ltd, owned by Justice Bill Wilson and Alan Galbraith, QC, was in the process of borrowing another $700,000 to help buy a property to enlarge a horse stud.

“The judge’s shareholding in Rich Hill Ltd was not at that time merely a passive investment,” the Supreme Court said yesterday.

“These circumstances … would, if disclosed before the earlier hearing, have led the court to the conclusion that the case on apparent bias was made out. There is … a very special reason why justice requires recall of our earlier judgment”.

In other words, we have a judge, now ensconsed in the highest court in our land, who has been found to have been found wanting in the judicious department.

The Government has displayed a bothersomne lack of sense of concern.

A spokesman for Attorney-General Chris Finlayson said he was studying the ruling. He had no immediate comment.

How much bloody study is demanded?

Alf would have the injudicious judge keel-hauled, if the Navy could spare one of its ships for the occasion.

As the Supreme Court has ruled, he should not have judged a case where one of the counsel was an active business partner.

If Wilson did not know he shouldn’t have judged the case, his judgement is dead dodgy and he is unfit to sit on the bench. Any bench, come to think of it, including the benches at Alf’s favourite park.

The ruling by Justices Peter Blanchard, Andrew Tipping, John McGrath, and Noel Anderson is the first on apparent bias relating to the relationship between a judge and counsel.

A fifth judge, Justice Tom Gault, sat on the original Supreme Court bench that on July 3 ruled in favour of Mr Galbraith’s client, but was not available for the recall hearing, a court official said.

The case in which participants have been failed by Judge Wilson and by our court system involves Saxon merino growers, including the Saxmere Company. They have spent years arguing their wool should be treated separately from other merino wools in allocating Wool Board funding.

Galbraith represented the Wool Board Disestablishment Company in the Appeal Court, where Justice Wilson found against Saxmere.

Saxmere owner Peter Radford – through his lawyer Sue Grey – appealed to the Supreme Court, alleging a potential conflict of interest because Mr Galbraith co-owned with Justice Wilson land for grazing race horses.

But the court ruled in July that a “fair-minded lay observer” would reasonably understand that Justice Wilson brought an impartial mind to his judgment.

Bollocks.

Last week,

the court said “it has emerged” that at March 31, 2007, shortly before the Appeal Court hearing, Justice Wilson had advanced $984,176 to Rich Hill, and Mr Galbraith had loaned the company $1,226,980.

Justice Wilson was to balance the contributions with a further $242,804, including interest and principal on $168,555 of bank debt.

“The objective lay observer could reasonably consider that … the judge was at the relevant time beholden to Mr Galbraith,” the court said.

Since the earlier Supreme Court ruling, it had also been disclosed that Rich Hill had contracted to buy a property to enlarge the horse stud, and had arranged to borrow its one-third share of the $2.16 million price.

“The judge and Mr Galbraith must have been reliant upon one another during the very time the Saxmere judgment was reserved in the Court of Appeal”, the court said.

The rehearing in the Appeal Court will be before a new panel of judges.

So far, so good.

But what happens to the Wilson bugger?

A few quiet words from his superior, and that’s it?

Alf has often harboured reservations about the quality of the justice dispensed by our courts.

He was outraged when the Clark Government did away with the right of appeal to the Privy Council and set up – at great expense – the Supreme Court as our top court.

The Wilson case shows why the Clark Government was so wrong to eschew the services provided freely by the Privy Council, thus denying our citizens the chance to take their cases for consideration by top British legal luminaries.

3 Responses to So what’s to be done to judge in bias case?

  1. James says:

    Fair comment. Obviously what the judge and counsel did was way over the top and could not possibly have been considered by anyone to have allowed Saxmere to have had the appearance of a fair hearing. Let’s not forget that this was the SECOND hearing on the topic and, first time round, the same judges said that Wilson was just fine. Have a look at the statement in the decision which says “the Court itself overlooked or were unaware of a provision in the Judicature Act 1908 and certain of the Guidelines for Judicial Conduct prepared for the assistance of New Zealand Judges but not at that time publicly available.” Hang on, this is the Supreme Court saying that they were unaware of the one piece of legislation which guides their extra-judicial activities. They did, after all, make a combined sumbission to parliament opposing this clause in 2003. Are they saying they had a bout of collective amnesia? Ditto, their own guidelines specifically state that a judge cannot have a business association with a lawyer appearing before them. How did they overlook or be unaware of these constraints when they made their first decision?

    And even worse, why did the Attorney General make submissions on the case strongly supporting Justice Wilson? The AG’s main responsibility is to act in the public interest. How is supporting this sort of behaviour acting in the public interest? Wilson and Finlayson are, of course, close friends, but that would not cloud the judgement of a fine upstanding public official. Would it?

  2. Allen says:

    Good post. The reality is that the legal community is small in NZ. This means that there is very little times when there is not a conflict of interest between various parties. It is ‘in bred’ and ‘incestuous’ – just as this case shows. The truth is literal – it is a ‘boys’ own club. Rob Moodie has it right, all along. The miracle is that the Supreme Court actually recalled a judgement. But I suspect that will be the only time, they will make a law change somewhere…or do a deal behind the doors, at the races, or ‘pillow talk’ to make sure they can protect their vested interests. Remember that many of the MPs have a legal background…so running to the government for help is unlikely to work (hence the reason why the Attorney General supported Justice Wilson). We should have retained the Privy Council, as we are too small a country (2 degrees of seperation or something like that!). But sadly, we will never go back to the Privy Council as the legal community can write their own processes and determine their own level of morality. We have turned down a dangerous road…

  3. James says:

    Yep, we certainly should have retained the Privy Council, but I doubt we will go back. The best we can hope for is a sort of Pacific court with visiting judges from Australia, Canada, etc. Even Fiji and Zimbabwe if we really want to have some justice!

    What scares me at the moment is that with the Judicial Conduct Commissioner hearings looming, the goss is that Wilson is negotiating with the Crown for a golden handshake to avoid embarrassing the good ole boys. But Wilson is the perpetrator of the problem, so why should he be compensated? I would have thought that compensation should go to the victims who have presumably spent big truckloads of money sorting out the Crown’s dirty washing. It is already a monumental injustice for Saxmere and rewarding Wilson would send completely the wrong message.

    James

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