Special Counsel appointed
June 27th, 2010 at 7:22 pm by David FarrarJudith Collins announced on Friday:
Dr Walter Sofronoff QC, Solicitor-General of Queensland, has been appointed Special Counsel to the Judicial Conduct Panel to inquire further into complaints against Justice Wilson, Acting Attorney-General Judith Collins said today.
The Attorney-General must appoint and instruct a person to act as Special Counsel in an inquiry by a Judicial Conduct Panel, as set out in the Act.
At the hearing the Special Counsel presents the allegations about the conduct of the judge concerned, and may make submissions on questions of procedure or applicable law that are raised during the proceedings.
An overseas appointment is logical. Few NZ lawyers would want to effectively prosecute a Supreme Court Justice, that they may have to appear before in future if he retains his job.
What I find interesting is that this appointment was announced, despite the lodging of a judicial review application by Justice Wilson. I may be reading too much into it, but to me that suggests a determination to move forward with the panel.
This may necessitate Justice Wilson trying to injunct the panel, until his judicial review is completed.
Related posts:
- Justice Wilson’s Judicial Conduct Panel
- Supreme Court Justice faces Judicial Conduct Panel
- Judicial Conduct Panel Proceedings
- Justice Wilson resigns
June 27th, 2010 at 7:26 pm
One in the eye to Auntie and her incestuous rearrangement of the justice system in Godzone perhaps?
Vote:June 27th, 2010 at 7:55 pm
An interesting point is the Justice Wilson – despite earning ~$400k a year – is entitled to his lawyer paid for by the taxpayer to defend him. I’m betting it won’t be at legal aid rates either!
Vote:June 27th, 2010 at 8:00 pm
Good God. Sometimes I think the commies have a few good ideas.
Rattle of musketry in the streets, blood in the gutters anyone?
Vote:June 27th, 2010 at 8:12 pm
Has a judicial review application actually been lodged?
Vote:June 27th, 2010 at 8:15 pm
Thursday last week, apparently.
ref: DomPost
Vote:June 27th, 2010 at 9:45 pm
There are only two ways he can succeed on judicial review:
1.Processes and procedures leading up to the the decision to hold an inquiry were not properly followed. Even if successful this does not prevent having another go.
2.The decision would have to be totally unreasonable / irrational (“Wednesbury” unreasonableness). This requires a very high standard of unreasonableness.
A judge considering an injunction would need to consider balance of convenience to the parties. He would need to show that allowing the inquiry to proceed before a judicial review is heard would cause him irrepairable harm.
IMO if the procedure suffered on from technical problems that can easily be fixed, an injunction would be refused and we would probably be treated to the spectacle of it being appealed right up to Supreme Court which may not really be in any fit state to hear it.
Johnboy – Privy Council appeals had to go – I think the UK Government would have wanted to ditch them too except for the few remaining colonies, Isle of Man and Channel Islands. They were only really useful for commercial cases. The Privy Council confessed lack of expertise with cases of a Kiwi flavour and basically refused to come to grips with them. They refused to overturn the Appeal Court’s Hamlin decision which paved the way for leaky homes claims against councils. I know a lawyer who went all the way to London for a Privy Council case involving Maori land, and Their Lordships basically declined to hear it.
Vote:June 27th, 2010 at 10:37 pm
Peterwn: there are other ways to win a judicial review (and one is the ground Justice Wilson is intending to use in his JR): illegality.
The Judicial Conduct Commissioner can only recommend that the Attorney-General set up a panel if he believes the allegations are so serious that if proved, they could warrant dismissal. Justice Wilson’s argument is that the allegations against him, even if proved, are not so serious as to warrant consideration of his removal from office, and is saying that the JCC misapplied this aspect of law in reaching his decision. See section 18(1)(b) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004:
[emphasis added]
Vote:June 27th, 2010 at 11:09 pm
It may warrant that the Judge’s removal be considered, but not require it.
Vote:June 27th, 2010 at 11:54 pm
Graeme, the way I read the JCC conclusion is that uncertainty abut the extent of “being beholden” and the lack of complete disclosure once the matter was raised, are the main reasons the issue couldn’t be dealt with through referral to the head of bench. Those are factual matters of enquiry still to be undertaken, and which will decide whether removal is actually warranted. Difficult to see how a JR can deal with that before the enquiry is undertaken. I don’t think it will fly if illegality is the argument. Additionally, difficult to see what the point is of having a JCC if the decision to hold an enquiry can be reviewed by the judiciary itself. Perhaps that legislation turns out to have been drafted poorly.
Vote:June 28th, 2010 at 1:53 am
That’s largely how I read it too. But Wilson’s argument is that even if those factual matters were all resolved in the worst way for him, it wouldn’t result in a conclusion that removal should be considered. That while matters are factually unresolved, the worst possible spin on the worst possible findings of fact just wouldn’t be serious enough.
I’m not saying it’s the right view, but that’s the argument. And as a matter of law, it’s perfectly capable of judicial review (whether factually that’s the right option is another question entirely).
Vote:June 28th, 2010 at 8:52 am
Graeme – As long as the Commissioner formed his opinion in a logical and fair way, it would not be open to judicial review on procedure. The only way of attacking the opinion would be by showing it was utterly unreasonable (“Wednesbury” style). Otherwise there would be a chicken and egg situation – ie the inquiry would be necessary to determine whether the Commissioner’s opinion was appropriate. Alternatively the proof of the pudding is in its eating – a judge may well say that it is better for the inquiry to proceed rather than for me to second guess the inquiry outcome or whether the subject of the inquiry could be de-benched as a result of it.
Hence seeking a judicial review would be a long shot and this would count against the chance of obtaining an interim injunction to delay the inquiry.
IMO trying to stop the inquiry merely increases the damage all round.
Vote:June 28th, 2010 at 9:06 am
Peterwn, what Graeme commented was that the JR argument is based on illegality, not on unreasonableness. There is a press release by Bell Gully online, which seems to confirm that this is indeed the argument in the JR application. See this weeks NZLawyer for an analysis of that position.
Vote:June 28th, 2010 at 11:35 am
Judicial Review does not just apply to procedure. And that is not the only way of attacking the opinion under JR. Another way is attacking it as being wrong in law. That is, to my understanding, the ground being adopted.
Vote:June 28th, 2010 at 12:40 pm
Wilson J continues to mis the point – he might be applying the law as he is entitled but he is destroying his credibility.
Vote:June 28th, 2010 at 2:34 pm
Dimmocrazy and Graeme
1. I cannot find the press release on the Bell Gully site. A date would have been useful.
2. Yes, NZ Law does survey the various possibilities for judicial review at various stages for the process.
As for setting up an inquiry I see nothing ‘illegal’ in this case when s18(1) is interpreted in accordance with its text and in the light of the purpose of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.
I concede the content of the opinion could be challenged by judicial review on points of law or where there is a ‘strike out’ type situation eg the judge could never be removed on the undisputed facts.
Probably more importantly is whether a court would order the inquiry be deferred pending any such judicial review.
The matter is more than merely academic interest to the long suffering taxpayer since the longer it drags on the more deaderight dollars leave the public purse.
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