Complainant’s question: Who judges the judges?
Company aggrieved after making bias claim, writes Nikki Mandow
What happens if a company isn’t happy with the way a complaint against a judge has been handled? It seems they have to ask a judge to take a look.
Justice Minister Andrew Little has told a company questioning Chief Justice Dame Sian Elias’ involvement in a case she heard last year, that having had a complaint to the Judicial Conduct Commissioner ( JCC) thrown out, the next step is to seek a judicial review.
Basically, Little is saying that if the complainant is unhappy with the decision of the JCC — the statutory body that reviews the conduct of judges — it should ask another judge to take a look.
The case involves New Zealand litigation funder LPF Group, which believes Elias had a potential conflict of interest in a recent case. LPF argues that the Chief Justice should have declared her family’s $500,000 shareholding interests in insurance company IAG and the fact that her husband Sir Hugh Fletcher was on the IAG board in New Zealand and Australia, before hearing a case where IAG was the insurer of one of the defendants.
LPF’s argument that the judge’s conduct in hearing the case should be reviewed is backed up by an opinion received from top London-based Queen’s Counsel Richard Coleman.
Coleman is the brother of former National Party Health Minister Jonathan Coleman, though that isn’t relevant in this case.
Richard Coleman also said that in his view, Elias acted “unfairly according to the English law principles of natural justice” because she gave provisional conclusions on an area which hadn’t been argued during the case, and where the parties had not had a chance to make submissions or produce evidence.
Elias declined to comment. LPF asked the Judicial Conduct Commissioner Alan Ritchie, a former executive director of the New Zealand Law Society, to investigate the issues of apparent bias (a legal term of art) and fairness. The company sent Ritchie the London QC’s opinion, which includes the view that “on these facts, the fair-minded and informed observer would conclude that there was a real possibility that the Chief Justice was biased”.
Ritchie ruled against the complaint without investigating further.
“I am satisfied that the fair-minded observer would have read the judgment as being entirely in keeping with a thoughtful approach to be expected of the Chief Justice in the particular circumstances,” Ritchie said in his decision.
Unsatisfied, LPF went back to the Judicial Conduct Commissioner. The answer was the same: there was no case to be investigated.
In the middle of October, Ritchie said in a letter to LPF director Phil Newland: “It would be sad, indeed, if my old friend Bill Wilson were to think that your speculative insults might do other than speak volumes about the nature of your complaint and your appreciation of the statutory provisions governing my role.”
Ritchie is here referring to former Supreme Court judge Bill Wilson, who retired in 2010 after not fully disclosing that he and Alan Galbraith QC, one of the lawyers in a 2007 Court of Appeal case, were co-owners of Rich Hill, a company that owned land occupied by a thoroughbred stud farm. Removing Wilson from the bench was an action which shocked the legal world at the time. Wilson is now chair of LPF Group. Reluctant to give up on his complaint against Elias, Newland then wrote to Justice Minister Andrew Little, who said LPF needed to seek a judicial review of the JCC’s decision. In an interview with the National Business Review, Little said he had no powers to intervene.
“The commissioner has various statutory rights. They have considered it, they have disposed of it — that’s as far as the JCC can go. If a person is concerned about the way their complaint has been disposed of, their next course of action is to judicially review the conduct of the JCC and I can’t intervene in that.”
A judicial review, which differs from an appeal of a decision, allows a High Court judge to look at whether a decision or action from a public body might be “unauthorised or invalid”. It is designed to hold public officials to account, including ministers, ministry CEOs, ministry employees or, in this case, the Judicial Conduct Commissioner.
However, University of Auckland Law School senior lecturer Rohan Havelock said a judicial review would be a futile exercise. Having seen the judgments, complaints and other documents in the case, he believes there is a case to be answered against the Elias decision and the Judicial Conduct Commissioner’s dismissal of LPF’s complaint.
But he said a judicial review against the Chief Justice had no chance of achieving an outcome for LPF, first because a judicial review was not a substantive look at a decision, just at the conduct and processes of the decision maker — in this case Alan Ritchie.
Also, it would involve a High Court judge being asked to review a decision against the Chief Justice — their highest boss.
The equivalent in the corporate world would be asking the head of Microsoft New Zealand to publicly pass judgment on the actions of Bill Gates.
Gavin Duffy, manager at the office of the Judicial Conduct Commissioner, vigorously defends the independence of the JCC, and the ability of judges to impartially review their colleagues or superiors.
“Judges take an oath where they swear they will show no fear of favour,” Duffy said. “The judicial oath is about putting aside anything and treating all cases independently.”
He said applications for judicial reviews of JCC decisions were not uncommon, although a search of Judicial Decisions Online suggests there have only been five people applying for a review against a JCC decision over the past five years, and it appears none have been successful.
Newland says LPF is in a no-win situation, where the company stands to be potentially disadvantaged by the Elias judgment.
“A judicial review puts a junior colleague in a very difficult position. It requires a High Court judge, who effectively reports to Dame Sian, to independently assess this issue.”
The situation is particularly frustrating, he says, because Elias is due to leave the job in March next year, having reached the compulsory retirement age of 70 for judges, and the JCC only makes rulings on current judges.
With March 2019 fast approaching and the holidays in the middle, Newland said the chance of any resolution was minuscule.
Meanwhile, Havelock points to statistics in JCC annual reports which show that out of more than 1800 complaints in the past five years, the overwhelming majority had been dismissed or had no further action taken.
Approximately 25 (1.4 per cent) had been referred to the head of bench (where the head of the relevant court takes a look), and about the same number had been withdrawn.
None over five years had been recommended for review by the Judicial Conduct Panel — the most serious step the JCC can take.
Havelock said looking at the original Elias judgment, he could understand why LPF complained, and this view was backed up by the opinion from the London-based QC.
But the chances of success for LPF, or any other company wanting to make a complaint against a judge, were “less than slim”.
While the office of the JCC talks in its 2017 annual report about “trivial, frivolous, vexatious” complaints, Havelock can’t believe all 1800 fall into that category.
Lawyer and former Act MP Stephen Franks was on the select committee when the bill went through creating the JCC. He said he wasn’t enthusiastic at the time, and he believes his concerns have been proven right.
He said the JCC’s jurisdiction was too narrow and the system did not deliver a mechanism to resolve problems if a judge was accused of poor conduct.
LPF’s Phil Newland said the system needed changing.
“To ensure the public can have confidence in our judges, it is critical that the process used to hold judges to account and examine their conduct, making sure they operate in a fair, open-minded and independent manner, is robust, credible and transparent.”