This is an application by Mr Williams for the recall of a judgment issued by the Court on 11 April 2019.[1] The judgment concerned an appeal and cross‑appeal arising out of a defamation trial. By a majority (Elias CJ, Ellen France and Arnold JJ), the Court allowed Mr Craig’s appeal and ordered a retrial. The cross-appeal was dismissed. The decision to allow the appeal reflected the conclusion that it was not possible to have confidence the jury approached its task in the correct way. A minority (William Young and Glazebrook JJ), while agreeing with the majority the jury had been misdirected, did not consider there was a risk of a miscarriage of justice. In doing so, the minority placed some weight on the failure of Mr Mills QC, trial counsel for Mr Craig, to object to the summing up at trial.
The application for recall[2] and directions for a rehearing of the appeal and cross‑appeal (the appeal) is made on the basis a fair-minded observer might reasonably consider that Arnold J might not have brought an impartial mind to the resolution of the appeal.[3] The applicant relies on events arising after the hearing on 4 and 5 September 2018 but before judgment was issued, as we now describe.
[2]The present application is being dealt with by five permanent members of the Court.
A sailing trip was planned in which both Arnold J and Mr Mills would be participants.[4] It appears that, aware of issues that might arise as to the appropriateness of that contact at that time, inquiries were made of Mr McKnight, counsel for Mr Williams. As Mr McKnight in his affidavit filed in support of the present application explains, he was contacted by Mr Mills on 25 January 2019 to ask about Mr Williams’ attitude to an intended sailing trip that he would be taking with Arnold J and which had been planned for some time.[5] Mr McKnight further deposes he discussed…
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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AGLC
Craig v Williams [2019] NZSC 60
Case
[2019] NZSC 60
Decision Date
CaseChat Overview and Summary
The Supreme Court of New Zealand was called upon to decide whether to recall a judgment issued on 11 April 2019 in Craig v Williams, which involved an appeal and cross-appeal arising from a defamation trial. The majority of the Court had allowed the appeal and ordered a retrial, while a minority considered that there was no risk of a miscarriage of justice. The respondent, Williams, applied for the recall of the judgment, arguing that a fair-minded observer might reasonably consider that Arnold J might not have brought an impartial mind to the resolution of the appeal due to a sailing trip taken with the appellant's counsel after the hearing but before judgment was issued.
The legal issues before the Court were whether the application for recall should be dealt with in accordance with the Guidelines for Judicial Conduct and whether there was an appearance of partiality when measured by the appropriate standard. The Court also considered whether Mr Williams' consent to the sailing trip was relevant and whether it was informed consent.
The Court found that non-compliance with the Guidelines did not necessarily comprise apparent bias and that there was no real dispute as to the critical events. The Court also noted that Mr Williams' views on the proposed sailing trip were sought and that he did not object to what was proposed. Moreover, the decision not to object was a considered one, expressed after conferring with his lawyer. The Court saw no reason why a party could not consent, so long as it is informed, to such contact. The Court concluded that there was no basis for recall of the judgment.
In light of the Court's decision, the application for recall was dismissed, and the respondent was ordered to pay the appellant costs of $3,500.