Aitken v Judicial Conduct Commissioner - [2025] NZHC 987

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-65

[2025] NZHC 987

UNDER the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 and the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for Judicial Review

BETWEEN

ELIZABETH MARGARET AITKEN

Applicant

AND

JUDICIAL CONDUCT COMMISSIONER

First Respondent

AND

ATTORNEY-GENERAL

Second Respondent

Hearing: 17 March 2025

Counsel:

P T Rishworth KC, D A Manning and S Lamain for Applicant N Whittington for First Respondent

I M C A McGlone for Second Respondent
T C Stephens KC and J B Orpin-Dowell assisting the Court

Judgment:

29 April 2025

JUDGMENT OF ISAC J

[Application for judicial review]

AITKEN v JUDICIAL CONDUCT COMMISSIONER & ANOR [2025] NZHC 987 [29 April 2025]

Table of Contents

Para No.

Introduction [1]

Statutory scheme and the Commissioner’s role[8]

The role of a Judicial Conduct Panel[17]

Background[18]

The Commissioner’s decision [28]

First alleged error: no articulation of the legal standard against which the allegations were measured[37]
The Judge’s case[38]
Analysis[46]

Second alleged error: “no or no sufficient reasons for the decision” [56]

The Judge’s case[60]

Analysis[69]

Third alleged error: decision not based on a sufficient preliminary

examination[86]
The Judge’s case[87]
Analysis[92]

Fourth alleged error: decision does not determine the initial scope

of the Panel enquiry[98]
The Judge’s case[99]
Analysis[111]
The conduct of the Judge’s partner and Michael Reed KC[117]
Lack of integrity in the Judge’s response to the complaints[120]
The relevance of media reports[122]
The gravamen of the complaint[124]

Relief[128]

Conclusion and result [130]

Introduction

[1] In the evening of 22 November 2024 the Northern Club hosted two social engagements. The first was a private business dinner organised by New Zealand First. The event was attended by the Deputy Prime Minister, the Rt Hon Winston Peters, and at least one other member of Cabinet, the Hon Casey Costello.

[2] In a nearby room a second engagement was taking place. This was an end of year function attended by members of the District Court bench based in Auckland and their partners to mark the retirement of two judges of that Court.

[3] During the course of the evening an exchange took place involving the applicant, Judge Ema Aitken, and a person or persons involved in the New Zealand First function. As a result, complaints were made about the Judge’s conduct to the Judicial Conduct Commissioner. The Commissioner determined that the conduct could, if established, warrant consideration of the Judge’s removal. In a decision of 16 January 2025 he recommended to the Acting Attorney-General that he appoint a Judicial Conduct Panel to enquire into what had occurred.

[4] Judge Aitken now seeks judicial review of the Commissioner’s decision. She argues the Commissioner’s decision is unlawful on four grounds:1

(a)First, the Commissioner failed to articulate any legal standard against which he measured the applicant’s alleged conduct before determining to recommend the appointment of a Conduct Panel.

(b)Second, the Commissioner failed to provide any, or any sufficient, reasons for his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 987
Decision Date: 29 April 2025

CaseChat Overview and Summary

In this case, Judge Ema Aitken sought judicial review of the Commissioner’s decision to recommend to the Attorney-General the appointment of a Judicial Conduct Panel to investigate her alleged conduct at a social function. The Commissioner had found that if established, the conduct could warrant consideration of removal. The applicant argued the Commissioner’s decision was unlawful on four grounds: failure to articulate a legal standard, failure to provide sufficient reasons, failure to conduct a sufficient preliminary examination, and failure to clearly identify the scope of the Panel inquiry. The court dismissed all four grounds of review. The court held that the Commissioner’s decision was provisional in nature, and that it was neither realistic nor desirable for the Commissioner to make detailed statements about whether the standard is met. The court found the Commissioner’s reasons were sufficient to explain how he reached his opinions, and that the Commissioner was not required to undertake an iterative investigation. The court also held that the Commissioner’s decision clearly defined the initial scope of the Panel inquiry, and that there was no requirement for the Commissioner to intrude on the merits of the conflicting accounts. The application for judicial review was dismissed, and the interim orders were rescinded, except in relation to the names of the complainants.

Orders