Raising the bar with Sasha Borissenko: Squall after a sailing trip

The questionable fishing trip was said to have been "planned for some time". Photo / NZ Herald.

Opinion

Raising the Bar written by Sasha Borissenko, former editor of New Zealand Lawyer and one of the journalists who broke the story of inappropriate sexual conduct by senior partners at law firm Russell McVeagh, is a new column entirely focused on the trials and tribulations in and outside the legal industry.

COMMENT:

The Colin Craig/Jordan Williams legal spat is nothing more than an illustration of how far rich men can go to access justice - irrespective of damage to third parties.

What really took my fancy, was the the real story here, a sailing trip with Craig's lawyer, Stephen Mills QC, and the Supreme Court's Justice Terence Arnold.

In a nutshell: the Supreme Court hearing involving Rich Man One and Rich Man Two occurred September last year. Rich Man One, Jordan Williams of the Taxpayers' Union, was made aware of (and didn't oppose) the trip in January.

The sojourn "went ahead" during a week in February. The judgment was finally released in April, with Arnold J making up the majority of 3:2 against Williams.

In an amazing turn of events Williams requested a recall in May, citing a conflict of interest, which was entirely and utterly rejected by the remaining Supreme Court in June.

Anyone who's read the case will understand that at no point was the case discussed during the holiday.

Now I wouldn't want to question a judge's sense of judgment but there are a few things that came to light that must be discussed. What wasn't discussed though, was the case, on the holiday.

On the issue of Williams' consent to the trip, ''it is both relevant and significant that Mr Williams' views on what was proposed were sought and that Mr Williams did not object to what was proposed. Moreover, the decision not to object was a considered one, expressed after conferring with his lawyer. We see no reason why a party could not consent, so long as it is informed, to such contact," the decision read.

The issue here though in my opinion, is what was at stake, and who held the power. Let me put this in context. Say I was to go to a group job interview. There's a panel of five and I'm in the running against someone who is equally fabulous.

At the end of the interview, my competitor announces they're starving and they've been wanting to try the new lunch special at Coco's Cantina "for some time".

This piques one of the interviewer's interests, who announces "oh I'll come with you".

My competition looks at me, says "that's ok that we go, isn't it?", and I nod accordingly, knowing full well that a) I haven't been invited, and b) if I say no, well, I need a job, don't I?!

Otago University Professor Andrew Geddis said the matter of consent was an issue of basic prudence.

"[We must recognise] that judges are human beings who remain susceptible to emotions and that all reasoning process[es] are influenced by such emotion to some degree.

"That's not to say that any judge would be as crass as to think 'that party to the case annoyed me, so I'll find against her/him'. That's too simplistic. But where an issue is a finely balanced one that could go either way, is it worth risking a stance that may unconsciously tip a decision-maker against you?

"Anyone who has been in a court can see this dynamic in action. For example, judge's jokes are inevitably regarded as being very funny by counsel."

(Full disclosure, Geddis was my public law lecturer but not to worry, we didn't discuss the case!)

Colin Craig at the High Court in Auckland. Photo / File

So back to my tumultuous interview.

Of course I'm not going to kick up a stink, but the question is, do I lose the plot if I don't get the job? Cue Williams' poor timing.

"A party who is legally represented, as here, cannot 'standby' until judgment and then, 'if those contents prove unpalatable' complain about the appearance of lack of partiality," the decision read.

It was delivered in April, and Wiliams sought a recall in May.

Frankly, I just don't see an issue with Williams' decision to spit the dummy after the fact. In the scheme of things - noting that the judgment took seven months - a month seems to be a drop in the bucket.

Focussing on Williams' conduct effectively meant the court didn't have to assess their fellow judges' conduct according to the Judicial Guidelines.

Specifically, once a case makes it to the Supreme Court, each judge has a duty to tell their judicial peers about any "known circumstances which may give rise to a concern among the litigants, or the public".

The trip had been "planned for some time", but how long are we talking? Before the hearing? Nowhere does it state in the judgment when, or if, Arnold J told his peers.

But what we do know is that at no point whatsoever did he discuss the case with his mate on the boat.

Sasha Borissenko has reported extensively on the law industry. Photo / Supplied

But speaking of boats, I'm practically gagging to know the details of this mysterious sailing trip.

Two lads (actually there was a third, but perhaps he was more of a "chaperone") frolicking on a dingy around the Mount is quite different to sailing a catamaran to Fiji. I feel the public needs to know. Sadly, the court declined to elaborate on the judgment, when asked for comment.

Suppose it had been determined that Arnold J contravened the Guidelines, he would have had to either excuse himself, invite input from the parties, or leave it up to his contemporaries to decide. But, as the judgment states: "non-compliance with the Guidelines does not necessarily comprise apparent bias".

And besides, the Guidelines are more of a guide, rather than a code. Williams of course could go to the Judicial Conduct Commissioner, but I think it's in everyone's interests - please, Jesus, Mary, and Joseph stop litigating - that he doesn't.

Instead I think Geddis put it best: "The onus really should be on judges to avoid raising these problems by being a bit circumspect in their actions. In particular, once you go to the bench, you have to accept that your relationship with those who remain in practice will have to change.

"And you really shouldn't go on sailing holidays with them while they have cases before you. Sometimes public roles demand sacrifices."