Judge faces being first to go to conduct panel

Rich Hill Stud is owned by Justice Wilson and Alan Galbraith, QC. Photo / Dean Purcell

Failing to make prompt disclosure of details of a financial relationship including that he owed a Queen's Counsel appearing before him almost $250,000 means Justice Bill Wilson may become the first judge to be referred to a judicial conduct panel.

A conflict of interest complaint is being investigated by judicial conduct commissioner Sir David Gascoigne with the help of the former Chief Justice of Australia, Murray Gleeson.

Sir David can recommend to the Attorney-General that he appoint a three-member panel to investigate. The panel can recommend on whether the conduct warrants removal.

Justice Wilson and Alan Galbraith, QC, owned a $3 million company that shared in the ownership of Rich Hill Stud in Waikato. The Supreme Court had assumed this to be primarily a passive land holding company.

The financial details that the Supreme Court decided amounted to an apparent conflict of interest were eventually provided as a result of the court's questions after the plaintiffs requested the court withdraw its earlier judgment.

The judgment, delivered on July 3, held that there was no basis for a reasonable perception of possible bias.

A pertinent passage in that judgment says:

"The objective observer might then turn attention to whether the Judge might in some way be beholden to Mr Galbraith because of the business dimension of their relationship and might unconsciously favour the side represented by Mr Galbraith because of some fear of disadvantage to himself if Mr Galbraith's client were to lose the case.

"Such a situation might theoretically exist if, for example, the Judge had been lent money by counsel or was dependent on counsel to meet some liability. However, the materials placed before this court reveal nothing of this kind."

Only after the applicant brought the case back to court, and in response to the court's questions, did Justice Wilson reveal he effectively owed Mr Galbraith $242,804 and that they were reliant on one another in a bank mortgage they were negotiating to fund the purchase of adjoining land at Rich Hill Stud at the time Mr Galbraith was appearing in a case before him.

Consequently, the Supreme Court recalled its earlier decision and ordered a retrial.

Chief Justice Sian Elias, who has bred, raced and sold horses in partnership with Justice Wilson, recused herself from the sitting.

TOP COURT OPTED OUT, SAYS PROF

The Supreme Court has been ticked off for passing up an opportunity to affirm the law that guards against judicial conflicts of interest.

Auckland University associate law professor Bill Hodge says Justice Bill Wilson breached the Judicature Act by being a director in a company he co-owned with Queen's Counsel Alan Galbraith, but that was "unfortunately ignored by the Supreme Court".

The Supreme Court decided it was unnecessary for it to rule on whether the judge was in breach of Section 4 (2A) because it was able to decide the Justice Wilson matter on the basis of the clear perception of a conflict of interest.

Asked whether the best legal minds had failed to apply the rules, Professor Hodge said: "That's my view, unfortunately."

"It would have been easy for the Supreme Court to say 'and it doesn't matter who the counsel is, he [the judge] shouldn't be a director'."

The section says: "A judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the chief High Court judge is satisfied that the employment or other office is compatible with judicial office."

A company directorship is an office. The requirement to get the permission of the chief High Court judge was to allow exceptions, such as serving on the likes of school boards and as a director of charities, Professor Hodge said.

"The Supreme Court said it would be odd for an appeal judge to have to ask permission of the head of the [lower] High Court. Well, it may be odd, but that is what the law says."

Professor Hodge also said Supreme Court judges were particularly well-paid, making $405,000 a year compared to the top judge in the United States, its chief justice, who was paid $305,000.

Justice Wilson was on a panel of three Court of Appeal judges who found in favour of Mr Galbraith's clients.

The other party appealed to the Supreme Court, claiming the judge and QC's business relationship raised the appearance of bias.