Judge 'unbiased' despite clown comment
A High Court judge has decided his impartiality in a company dispute remains pure despite reading one party had called him "a clown judge" in a taped conversation with a private eye.
At a Christchurch High Court hearing recently, a company associated with bankrupt property developer Dave Henderson - Gibbston Downs Wines - petitioned the court to set aside statutory demands for the repayment of an alleged debt to Property Ventures made by the company's liquidator, Robert Walker.
Property Ventures was the flagship company of Henderson's property development empire, and has been under the control of Wellington-based Walker since 2010.
Associate Judge Rob Osborne presided over the hearing and in a written minute he describes, the morning before the fixture, finding the transcript of a conversation between liquidator Walker "and one Wayne Idour". Idour was a private detective allegedly employed by Henderson to investigate Walker.
Judge Osborne said the transcript showed Walker saying: "Ah I was appointed on 22nd July 2010. But I'm not allowed to do anything because there's a clown judge sitting in Christchurch who was in awe of a man called Austin Forbes QC and he granted him a stay on the exercise of my powers."
Forbes was the lawyer acting for Property Ventures when the High Court appointed Walker liquidator of the company, albeit with "the stay" - a caveat for the company to overturn the decision in the Court of Appeal.
Judge Osborne was the judge in question.
"It is part of the life of a judge to come across from time-to-time someone else's insight into some decision the judge has made," Judge Osborne said.
"Monday morning this week was such an occasion."
After briefly considering whether there was chance of bias against Walker because of his comments, he decided there was not and continued with the hearing, reserving his decision.
The next day, Gibbston Downs' lawyer, Kevin Clay, asked for "an urgent telephone conference" at the behest of the company's directors to raise the spectre of reverse bias by Judge Osborne. He was worried that Judge Osborne would be affected by the transcript remark and "over-compensate" in attempt at fairness, making a judgment in favour of Walker and Property Ventures.
"The implicit suggestion is that I might be viewed as making a decision in favour of Property Ventures Ltd (in liquidation) so as to establish that I am 'my own man'," Judge Osborne said. The "colourful" comment would not affect his pursuit of fairness for both parties, and, in any respect, it was his duty as a judge to set aside prejudices he held and be objective, he said.
"For these reasons I do not intend to disqualify myself.
"I will reach and deliver my judgments on the setting aside applications in due course."
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