Top judge's conduct in spotlight in lengthy saga

16:00, Dec 28 2009

The controversy that has embroiled Supreme Court judge Bill Wilson has a particularly New Zealand flavour.

Horses and sheep figure prominently, as does New Zealand's smallness.

The case, from which the judge's troubles stem, was a dispute about Wool Board funding for a small group of woolgrowers.

From there, it has grown into a case that throws into question the judgment of one of the country's top judges and also the ability of New Zealand's highest courts to maintain confidence in their impartiality.

The case has its origins in a marketing operation set up by North Canterbury farmer Peter Radford.

He was trying to build up a business marketing wool from the saxon sheep breed.

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New Zealand's saxon flock is derived from a pure-bred saxon flock in Tasmania and provides a fibre even finer than merino.

In 1997, Radford sought Wool Board funding to market the wool separately, continuing his requests until 2002.

The board turned him down, preferring more broad-based merino marketing organisations.

Radford, his company Saxmere and associated farmers sued the board.

The amount at stake is unclear, but the board is holding $4 million in levies paid by Radford and allied farmers, which is central to the dispute.

In 2005, the Radford-led group succeeded in the High Court with a ruling the board was liable for damages, for breach of statutory duty and in negligence.

The case then went to the Court of Appeal and was heard in March 2007 by a bench consisting of William Young, Susan Glazebrook and Bill Wilson.

Wilson was appointed to the Court of Appeal in 2006, straight from his practice as a QC.

A few days before the hearing, Justice Wilson informed Francis Cooke, QC, one of the lawyers for Radford, that he and counsel for the Wool Board, Alan Galbraith, QC, shared an interest in a company which owned land occupied by a horse stud.

Wilson did not go into details but if he had he would have revealed he and Galbraith bought into the Rich Hill stud property in Waikato in 1994.

They each had a 50 per cent shareholding in the company Rich Hill Ltd, which owned part of the land on which the stud was based.

He was also involved in the breeding, selling and racing of valuable horses as a member of three partnerships comprising Chief Justice Dame Sian Elias, her husband businessman Hugh Fletcher, Galbraith and himself.

Cooke, who did not press for details, raised no objection to Justice Wilson hearing the case.

The Court of Appeal then overturned the High Court decision, saying the judge had made a fundamental error about the duties of the board.

It ordered Radford and the other respondents to pay the board's costs in relation to the High Court proceedings and another $18,000 costs for the Court of Appeal proceedings.

That was not the end of the matter, however.

Radford's Nelson lawyer, Sue Grey, next sought the leave of the Supreme Court to appeal the decision, but this was turned down.

In 2008, she applied again, this time putting forward a new ground of appeal, that of bias.

She alleged Wilson should have removed himself from the case because of his business connection with Galbraith.

Grey, who is the partner of former Green MP Ian Ewen-Street, also tried to alert higher authorities to the case by copying in both the Prime Minister and the Attorney-General to some of her emails on the subject.

The bias alleged did not suggest Justice Wilson showed an apparent bias or that he was actually motivated by bias.

The allegation was that because of his connection with Galbraith, his judicial independence may have been affected by an unconscious bias in favour of Galbraith, and through him, of the Wool Board.

The court granted leave for an application on the new ground to be made and heard the case in March, ultimately deciding against Radford.

The test, the court said, was whether "a fair-minded lay observer might reasonably apprehend that a judge might not bring an impartial mind to the resolution of the question the judge is required to decide".

What settled the matter for the court, the judges said, was that they could not see how Justice Wilson could have been "unconsciously influenced" by the thought that if Galbraith lost the case, their relationship might be affected.

The two had, after all, appeared on opposing sides in many cases and Galbraith's practice was hardly going to be affected if the decision went against the Wool Board.

Materials before the court revealed nothing of Justice Wilson being beholden to Galbraith, the court said.

Saxmere's legal team rallied after the ruling and went to the Supreme Court in November 2009, asking it to revisit its earlier decision on the grounds counsel had overlooked provisions in the Judicature Act and Guidelines for Judicial Conduct, against which it appeared Justice Wilson had offended.

Before the new case was argued, Justice Wilson provided a statement to the court to respond to a suggestion he had not made full disclosure prior to the earlier Supreme Court hearing.

The statement was supplemented "at the invitation of the court" with further factual information.

In the statements, the full extent of the business arrangements between Justice Wilson and Galbraith was revealed.

A hearing was held on November 24 and the Supreme Court gave its decision three days later.

The court rejected both grounds put forward by the Saxmere legal team, but then moved on to a "cause for concern" raised by the further information provided by Justice Wilson on August 29 and then on September 30, after a pointed request from his fellow judges.

The latter information put a percentage figure into dollar terms.

The disclosures, the court said, raised the issue of whether the reasonable observer might consider the judge's affairs gave the appearance he was beholden to Galbraith.

The court had had the impression from information in the first hearing that Rich Hill Ltd was largely a passive land-holding company jointly owned by Wilson and Galbraith.

There was nothing to suggest anything other than equal contributions to share capital and loan capital.

The new information showed that shortly before the Court of Appeal hearing, Wilson was $74,249 behind Galbraith in his contributions to the company's account. If the court added the amount of a bank debt and interest the judge had agreed to pay and had not yet done so, the sum was $242,804.

"We are of the clear opinion a lay observer could consider that at relevant time the judge was beholden to Mr Galbraith and this might unconsciously affect the impartiality of the judge's mind ..." the court ruled.

Another new fact not appreciated at the earlier hearing was that Rich Hill was buying one-third of a property (for $2.16 million) to enlarge the horse stud at the time of the Court of Appeal hearing.

Co-operation between Galbraith and the judge to enable funding and to complete the sale was required, making the Rich Hill shareholding "not a passive investment".

"These circumstances and in particular the first of them, would, if disclosed before the earlier hearing, have led the court to the conclusion the case on apparent bias was made out."

The court recalled its earlier ruling and the original case was sent back to the Court of Appeal for a rehearing.

Justice Wilson's troubles do not end there.

A complaint against him, laid with the Attorney-General Chris Finlayson about 18 months ago, has been forwarded to the judicial conduct commissioner Sir David Gascoigne, who has enlisted the services of former Australian Chief Justice Murray Gleeson to assist. Gascoigne can recommend to the attorney-general that he appoint a three-member panel to investigate.

The Press