Four years, significant legal fees, $128,000 costs paid to its opponent and a lot of stres' />
Phil Taylor reports on the small world of New Zealand's legal sector brought to light by the Saxmere saga.
It's not quite back to square one but it is next door.
Four years, significant legal fees, $128,000 costs paid to its opponent and a lot of stress later, superfine woolgrower Saxmere finds itself back where it was in 2005.
Normally, the case about millions of dollars of levies for marketing wool would have flown largely below the public's radar.
It is in the headlines now because Court of Appeal judge Bill Wilson (since promoted to the Supreme Court) failed to promptly reveal that he effectively owed one of the lawyers appearing before him $242,804.
As a result, the Supreme Court took the unique step of recalling its earlier decision - in which it found there were no grounds to question the judge's impartiality - and ordered the case to return for re-hearing in the Court of Appeal.
That result was largely down to the tenacity of Peter Radford, the North Canterbury farmer behind Saxmere.
As a result of the energy and financial outlay he and others have made, the public now has a better idea of how small a world it is in the top echelons of the judicial and legal sector of a small country.
Along the way the public has learned that the Chief Justice, Dame Sian Elias, shared in the ownership of racehorses with Wilson and lawyer Alan Galbraith, QC, and that Attorney-General Chris Finlayson also counts Wilson as a friend.
Finlayson and Wilson were partners at the same time in law firm Bell Gully until the judge left in 1996 to become a Queen's Counsel.
In a statement provided to the Herald in December, the Attorney-General said his relationship with the judge was professional.
He has since added that he considers Wilson a friend although he has not been a guest at the judge's home in the past five years.
Finlayson acted as the public intervener early in court hearings about whether the relationship between the judge and Galbraith could amount to the reasonable perception of possible bias.
As public intervener, a submission is filed, in the public interest.
It is made in the name of the Attorney-General but written by Crown Law and signed by the Solicitor-General, David Collins, QC.
At that early stage Collins wrote that Wilson's version of disputed facts should be accepted.
He also said that on the facts then available there was no reason why the judge should have withdrawn from the case.
However, the submission was not updated to reflect relevant information Collins and Finlayson were sent in late July or early August - four months before the Supreme Court's final ruling which determined that there was a reasonable perception of possible bias.
That information, which included that the judge was substantially in debt to the lawyer who had been pressing him for payment, came from respected retired appellate judge Sir Edmund (Ted) Thomas who copied to Collins and Finlayson a letter and notes he sent to the Chief Justice.
Sir Edmund subsequently made a complaint to the Judicial Conduct Commissioner (JCC).
Finlayson referred the Herald's questions about this to the Solicitor-General. A response was not received in time for inclusion in this article.
With his conduct being reviewed by the JCC, a question now for Wilson is why he didn't move to correct a crucial misapprehension by the Supreme Court, instead leaving it under the false impression for four months that he was not indebted to and, therefore not beholden to Galbraith.
Wilson did not respond to the Weekend Herald's approach for comment.
Another issue may be the explanation he gave the court as to why he stated a percentage rather than the dollar amount he owed to Galbraith, his partner in Rich Hill Ltd, part-owner of a horse stud.
Wilson said, in his statement of 22 October 2009, that he had not included the figures in his previous statement because Galbraith "did not wish them to be made public".
For a judge asserting he was not beholden to Galbraith, it seems notable that he tailored his disclosure to the court to suit Galbraith's wishes.
Sir Edmund has criticised aspects of Wilson's disclosures to the court.
In his statement of September 30 2009 Wilson said he did not agree that "an imbalance in shareholders' accounts of itself results in indebtedness" and continued that he was "not aware of any legal or accounting principle which supports such a proposition".
Sir Edmund said in his complaint that the suggestion he was not therefore required to disclose the imbalance was "legally untenable".
"The obligation on a judge is to disclose facts or circumstances relevant to the test for apparent bias. This obligation is not circumscribed by technical rules.
"It is a question which requires any facts or circumstances which might cause a fair-minded observer to reasonably apprehend that the judge may lack impartiality to be disclosed. A substantial imbalance in a shareholders' account, including a financial adjustment in respect of the company's debt to the bank, clearly comes within that category."
It was two years after Wilson's first disclosure before the facts held to be relevant by the Supreme Court finally emerged.
As for Saxmere and the Wool Board, the question they first came to court to settle remains in the balance. They are scheduled to argue their case again in June before a new Court of Appeal panel.
It effectively takes them back to the position they were in December 2005 when the High Court ruled that the Wool Board was liable for damages for negligence and breach of statutory duty.
The dispute has its origin in a marketing operation set up by Radford who was trying to develop a business marketing wool from the saxon sheep breed.
New Zealand's saxon flock traces directly to a pure-bred saxon flock in Tasmania and produces wool finer than merino.
The board's practice of marketing all wool did not suit and as a result of lobbying, what has become known as "the Saxon clause" became part of the Wool Board Act 1997. It provided the opportunity for niche wool growers to do their own marketing.
Radford's requests - made from 1997 to 2002 - for funding to market the saxon wool separately were turned down, the board preferring more broadbased merino marketing organisations.
Radford's group went to court seeking repayment of millions they had paid to the board in levies, plus damages. They argued that by funding general merino marketing organisations, the board had effectively given their levies to their opposition.
After winning the first case, they lost in the Court of Appeal where Wilson was on the panel of three judges.
Saxmere's challenges to whether Wilson should have withdrawn followed as Radford, with the help of his lawyer, Sue Grey, became aware of more details of the judge's business relationship with Galbraith and the rules governing potential conflicts.
Radford's tenacity has been mirrored by Grey, whose efforts resulted in the Guidelines For Judicial Conduct being made public.
They were written in 2003 but made publicly available only recently.
The guidelines state that it is impossible to be categorical about relationships that give rise to disqualification but include that:
"The Judge must be alert to any appearance of bias arising out of connections with litigants, witnesses or their legal counsel."
"It is sensible for the Judge to decline to sit in cases of doubt."
"A Judge should disqualify himself or herself whenever a party, lawyer or witness of disputed facts is ... a close friend or business associate of the Judge."
"In cases of uncertainty it may be desirable for the Judge to discuss the matter with the head of Jurisdiction or another Judge.
"Where the Judge is uncertain as to whether disqualification is appropriate it will usually be necessary for the parties to be given an opportunity to make submissions on the point after full disclosure of the circumstances ..."
Grey's determination to see the case through effectively cost her her job as a lawyer with the Department of Conservation.
As the litigation developed, the Attorney-General was named as a party, prompting the Solicitor-General to decide it was not appropriate for a lawyer working for the Government to act for a litigant against the Attorney-General.
Grey says it was part of her employment contract that she would be able to continue to act for existing clients in ongoing matters where she had the case knowledge.
She was dismissed and lost her case at the Employment Relations Authority. But DoC withdrew its dismissal, accepted her resignation and settled on otherwise confidential terms after Grey appealed to the Employment Court.
The Wilson matter is a test for the Supreme Court and another new New Zealand institution, the JCC.
The latter was set up in 2005 to deal with complaints about judges and to enhance public confidence in, and protect the impartiality and integrity of, the system.
The commissioner, Sir David Gascoigne, can decide to dismiss, refer the matter to the Chief Justice or recommend to the Attorney-General that a Judicial Conduct Panel be appointed to conduct a public investigation.
A panel must give its findings of fact to the Attorney-General, along with an opinion as to whether the judge's conduct justifies consideration of removal.
In the years since it was established the JCC has received 429 complaints, of which 10 have been referred to the head of the relevant judicial bench.
None have been referred to the panel.
Sir David has enlisted the help of a former chief justice of Australia, Murray Gleeson, known for his thoroughness and, according to a profile, nicknamed "the Smiler" because of "the sternness of his mien".