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Sick Supreme Court – Wilson case emails

  • August 7th, 2010

Yesterday I was proud to move the admission to the bar of  Jordan Williams, from my firm's staff. The presiding judge (former Waitangi Tribunal Chair  Joe Williams)  reminded the new entrants (and their moving counsel) to live up to the professional standards required to maintain our centuries-built inheritance of the rule of law. That means placing service ahead of personal interests.

Foremost is our duty to the court – the only duty that prevails over our duty to the client. Justice Williams emphasized integrity.

I get a charge from these ceremonies, seeing young lawyers set out to play their part in maintaining and renewing the institutions of the rule of law. The celebration lunch with Jordan and his family was unalloyed pleasure.

Then I went back to the office and became sick at heart.

Along with no doubt hundreds of other lawyers who should have been racking up chargeable hours yesterday, instead I clicked on  NBR links to emails between retired senior judge Sir Edmund (Ted) Thomas and Jim Farmer QC.

They say Chief Justice Dame Sian Elias  was "sick to the stomach" about  the Bill Wilson problem.

My hour on the emails does not resolve  whether Justice Wilson knowingly failed to disclose a material conflict of interests (the Supreme Court has already held that his interests were disclosed inadequately).  We still do not know enough to judge whether a reasonable person would conclude that Wilson's judgment could be affected by a feeling of obligation to Galbraith, counsel for the winning side in the Saxmere case.

But they do reveal enough of Farmer's thinking (and in hearsay the thinking of his client and friend Alan Galbraith QC, and friend Colin Carruthers QC) to justify Ted Thomas' fears that they were each more concerned about the interests of their friends (including the Chief Justice) than the integrity of the Supreme Court. For Farmer and Carruthers there is some defence – they were always subject to duties to their clients.

The Herald story cites from a  passage in a 24 July 2009 email from Jim Farmer. They include only the second sentence. The full paragraph says more. It reads:

"I thought that from my last email and our discussion at Court the other day that you had got the message that if this matter is probed, it will be likely to bring down Sian as well as Bill. While I have no brief for Bill, I do regard Sian as a close friend and I will always put friendship and loyalty above concerns about the 'system' which has its own processes for looking after itself. I would always have thought that would be your position too but am now worried that you won't leave this alone".

Whatever the Judicial Conduct Panel now does, the damage is done. The passage encapsulates the issue that suffuses the email debate. It appears to have driven Sir Edmund throughout. As a system insider (though often the establishment's pet outsider in court decisions) he is acutely aware of the system's vulnerability to group loyalty. His despair and willingness to sacrifice his friendship with Farmer show pungently the point I tried to get home during the Parliamentary debates on ending our right of appeal to the Privy Council, that integrity can go very quickly from a system which is expected to cleanse itself.  

The current damage started when no MP challenged what I am told was the refusal of the then MInister of Justice Doug Graham to lead or to allow Parliamentary impeachment of Northland District Court Judge Martin Beattie. Beattie was acquitted on charges with a defence that should itself have disqualified him from judicial office (essentially – I was too stupid to understand that I could not fiddle my expenses). His fellow judge Robert Hesketh did the decent thing and accepted punishment. He was rightly re-elevated afterwards to his current position as Director of the Office of Human Rights Proceedings.

The foolish law under which the Panel is appointed was said to have grown out of that experience with Beattie. It legitimised Parliamentary cowardice, by eliminating the simple notice of motion procedure that would have made impeachment unnecessary. The Speaker would have discreetly mentioned to the Chief Justice or directly to Wilson J that there was mounting pressure within Parliament for an impeachment. Because Parliament can act to cleanse the appearance of impropriety without needing proof to any defined standard, the persons embarassing the system must then either decide to go with what dignity they can muster, or persuade themselves that their cause is so simon-pure that it will prevail in Parliamentary debate.

Instead the Panel process will be an expensive show. Whatever it decides the stain is likely to remain. Ted Thomas' concerns are relevant even if Bill Wilson is vindicated – the people in the system are seen to be too close to each other to be sure that they really wanted to know the truth, and each player (other than Thomas) seems to have wanted to leave decisive action to others (called the "system" in the emails). Perhaps that word made it easier to avoid admitting that it was the court they were shying from serving.

What must happen is now clear. The government should tell us very quickly how they propose to restore assurance that we can get objective justice. They've had plenty of time to think. We need  to send cases to the High Court of Australia, or to take on outside judges on the Supreme Court when the people on our top court know too many of the parties, or have worked for them, or have relatives or close friends with such complicating interests, or have investments that will be affected by a decision, or are known to have longstanding friendships (or the opposite) with parties or their counsel, or have passionate known views on issues. 

The Chief Justice should have recused herself on the Ngati Apa case that plunged us into the seabed and foreshore mire. But it is no solution to say that we should not appoint judges like Dame Sian. We do not want only judges who have been so incurious or toadyish or colourless or spineless as to have never participated in the great debates of our society.

So we need a mechanism to neutralise the suspicions that will attend  such judges in areas of passion. We need access in some cases to patently impartial international umpires, outside the cosy hot-house that is our senior legal society.


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The District Courts Act has never provided for a Parliamentary impeachment of District Court judges.
The Judicature Act requires the advice of Parliament before the G-G removes a High Court (or Court of Appeal or Supreme Court) Judge; the Employment Relations Act, Court Martial Act, and Court Martial Appeals Act require the same for Employment Court Judges, Judges of Courts Martial and Judges of the Court Martial Appeal Court respectively, but the additional procedure doesn't apply to district court judges.
I don't suppose section 7 of the District Courts Act precludes Parliamentary advice to the G-G being the basis for removal from office, but it's certainly not what is anticipated.
For myself, I like that it is now harder for the executive and the legislature to remove judges at all levels – it's an important bulwark supporting judicial independence.

  • Stephen
  • August 11th, 2010
  • 6:56 am

Whether the additional procedure supports independence or subtly weakens it was a concern when the law changed. I have a mild preference for more entrenchment of basic protections that up to now have been matters of constitutional convention, but allow that those concerned about consequent withering of their political potency as judicialisation proceeds, may be proved right. The current shambles may be a case in point. The inexcusable time taken by the current process is lowering respect for the judiciary and what Farmer QC called “the system”.
Increasing formalization of the roles of Cheif Judges at each level and the complaints procedures can be applied to increase pressures for conformity, not independence. Indeed we may have lost a significant degree of judicial independence already in panicky responsiveness to some of the isms to which mainstream policiticians must pay at least lip service, but which a truly independent judge could ignore. For example David Morris J was severely criticised for comments that were thought to betray “dinosaur” attitudes that he probably shared with a majority of the population.


When people in positions of authority start to superimpose self-deluding rationalisations that protection of their personal interests (such as hiding their errors, or those of their friends, from public view) is somehow for the greater good of the people they serve, the roots of democracy and good government start to erode

  • Mike Mckee
  • August 18th, 2010
  • 3:30 pm

As a non lawyer  take a really dim view of this affair.
All the lawyers who stood in court that day, regardless of the side they represented, if they knew of the monetary relationship between QC. Galbraith and Justice Wilson and especially of the chasing of the debts should have insisted that it was improper to continue and Wilson stood down.
How hard is this?
Why do we not hear of QC Galbraith being investigated for bringing the court into disrepute by not disclosing the relationship to the court?
As an officer of the court, according to what has been reported so far his behaviour is not acceptable and if this is common then my trust in a just and equitable system for all is damaged.
For that alone Wilson should go, but Galbraith must carry some penalty.

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