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Supreme Court recalls decision - judicial bias

Justice Wilson's Day In Court - Not A Happy One

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Supreme Court recalls decision on basis of judicial bias

In what may be the only such case to have come before the court, involving allegations of judicial bias because of the relationship between a judge and a lawyer appearing before him, the Supreme Court have taken the unusual step of recalling a decision involving Justice Bill Wilson.

The decision follows additional information relating to the relationship between the Judge and Queen's Counsel Alan Galbraith having been disclosed to them by the Supreme Court justice.

Justice Wilson was one of a panel of three Court of Appeal Judges who allowed an appeal by the respondent, the Wool Board, against a judgment of the High Court in favour of the Appellant, Saxmere Company Ltd. when Justice Wilson's business partner, Alan Galbraith QC appeared before the judge to argue the appeal.

In July, the Supreme Court held that Justice Wilson's involvement did not amount to bias in the mind of a fair-minded person. Today it changed it's mind in the light of additional evidence produced by the Judge and relating to his heavy financial involvement in the affairs of Rich Hill Ltd. This involvement included the purchase of additional land by Rich Hill Ltd.

"The Judge and Mr Galbraith must have been reliant upon one another, during the very time when the Saxmere judgment was reserved in the Court of Appeal, for mutual cooperation to enable the funding and completion of the purchase of the additional land. That too is a matter which might raise a question in the mind of the observer about the Judge's ability to address the issues raised by the appeal without being unconsciously affected by this ongoing aspect of his business relationship with counsel.

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Shortly before the Court of Appeal hearing in March 2007, Justice Wilson borrowed money in order to advance $984,176 to the company that he co-owns in equal shares with Galbraith. In turn, Galbraith advanced to the company personal monies of $1,226,980.

The Judge also assumed sole responsibility of a bank debt he shared with Galbraith totaling $168,555. The total imbalance of contributions totaled $242,804. It was also revealed that between the time of the appeal hearing and the reserved Court decision in favour of Galbraith's client, Galbraith and the Judge jointly purchased property valued at $2.1 Million.

The Court had not been aware of the additional financial obligations and relationship between the Judge and the QC when they made their earlier decision that there had been no bias, or at least no apprehension of bias on the part of the Court as a result of the significant financial involvement of the two men.

In their earlier decision dismissing the appeal the Court said the applicable test for bias in the New Zealand courts was that a Judge is disqualified "if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".

"It is now said that the conclusion we reached ought to be revisited, in part because both counsel and 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 NewZealand Judges but not at that time publicly available."

Wilson J provided the court with "further disclosure" about his financial involvement with the horse stud operation".

"It has emerged that as at 31 March 2007, shortly before the hearing in the Court of Appeal, the position was that the Judge had advanced $984,176 to the company and, by informal arrangement with Mr Galbraith, had assumed exclusive responsibility for paying interest and principal on an amount of $168,555 of bank debt owed by the company.

"The total of those sums was $1,152,731. On the other hand, Mr Galbraith had advanced to the company the sum of $1,226,980. The difference between those figures, i.e. the imbalance in shareholders' accounts, was $74,249 or, if notice is taken of the fact that the Judge had not actually made any payment of the bank debt of $168,555, an aggregate sum of $242,804."

"There is now disclosed also a further circumstance which was not appreciated by this Court at the earlier hearing. It is that, at the time of the hearing in the Court of Appeal, Rich Hill Ltd was preparing to participate in the settlement of a sale and purchase in which it had contracted to buy one-third of a property intended to enlarge the horse stud which was being acquired by a group involving Rich Hill for $2,160,000. Arrangements were being put in place for Rich Hill Ltd to borrow its one-third share of that price on the security of its existing land."

Solicitor General David Collins QC appeared in the court "for Intervener".

ENDS

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