Muir v Judicial Conduct Commissioner
[2013] NZHC 989
•7 May 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2012-485-1646 [2013] NZHC 989
IN THE MATTER OF a decision of the Judicial Conduct
Commissioner dated 30 November 2011
BETWEEN G A MUIR, C BRADBURY AND G A PEEBLES
Plaintiffs
ANDJUDICIAL CONDUCT COMMISSIONER Defendant
Hearing: 3-6 December 2012
Counsel: G J Judd QC for C R Bradbury and G A Peebles
No appearance by or on behalf of G A Muir
D J Goddard QC and L Theron for the Defendant
L Taylor for Justice Venning
Judgment: 7 May 2013
RESERVED JUDGMENT OF GODDARD J
This judgment was delivered by me on 7 May 2013 at 4.45 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Wynyard Wood, PO Box 204-231, Auckland 2161
Gault Mitchell Law, PO Box 645, Wellington 6140
Bell Gully, PO Box 1291, Wellington 6145
Counsel: G J Judd QC, PO Box 137-273, Auckland 1151
D Goddard QC, PO Box 1530, Wellington 6140
L J Taylor, PO Box 5537, Wellington 6145
MUIR V JUDICIAL CONDUCT COMMISSIONER HC WN CIV-2012-485-1646 [7 May 2013]
Introduction
[1] The plaintiffs seek judicial review of a decision by the Judicial Conduct Commissioner (the Commissioner) to take no further action in respect of complaints they made to him about a High Court Judge over the period 31 May 2010 to
6 September 2011.
[2] In essence there were two complaints, which were lengthily restated over time. The history and re-statements of those complaints is comprehensively set out by the Commissioner in his decision. Each restatement is essentially a revision and extension of the original complaints, generated in response to the Judge’s responses to the Commissioner during the course of his preliminary examination.
[3] Ultimately the Commissioner dealt with the complaints as four separate matters.
[4] The first concerned the Judge’s awareness of and compliance with s 4(2A) of the Judicature Act 1908. The plaintiffs alleged that the Judge had knowingly breached that section by not disclosing his interest in a forestry investment, the Tahakopa Forest Trust Ltd (of which the Judge became a shareholder and director in
1992), to the Chief High Court Judge in 2004, and by not disclosing it earlier when appointed to judicial office in 1995, or at various times thereafter.1
[5] The second complaint concerned the plausibility of the Judge’s knowledge of irregularities alleged to have occurred around the establishment of the Tahakopa forestry investment in 1992, including the time at which the Tahakopa Forest Trust Ltd became a trustee and acquired beneficial ownership in land purchased for forestry purposes. Further, that the Judge failed to adequately disclose the extent of his involvement in this investment to the plaintiffs and others in 2005, when he
presided over litigation concerning their own forestry taxation scheme.
1 Justice Venning was appointed as a Master of the High Court in 1995 and as a Judge of the High
Court in 2002.
[6] It was contended these irregularities may have resulted in taxation liabilities for the Judge, a matter which (in the plaintiffs’ view) would have been known to the Commissioner of Inland Revenue (the CIR), thus rendering the Judge thereafter “beholden” to the CIR, a frequent litigator before the courts. The plaintiffs suggest this “relevant connection” between the Judge and the CIR created “an asymmetry” of knowledge between those persons which may have prejudiced their own litigation.
[7] The third complaint, described by the Commissioner as an “implied third complaint”, asserted that the “cumulative effect” of the alleged conduct meant the Judge was not a fit and proper person to hold judicial office; and that had he disclosed the ‘irregularities’ alleged around the establishment of the Tahakopa forestry investment at the time he was first considered for judicial appointment, he would not have been so appointed.
[8] The fourth complaint related to alleged incorrect or misleading representations by the Judge in correspondence with the Commissioner during the Commissioner’s preliminary examination of the complaints.
[9] The Commissioner’s decision to take no further action on any of the complaints under s 15A of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Act) was delivered in writing on 30 November 2011.
[10] The plaintiffs’ case on review is that the Commissioner erred by not recommending the appointment of a Judicial Conduct Panel under s 18 of the Act to inquire into the Judge’s conduct in respect of the second, third and fourth complaints; and that he should have at least referred their first complaint to the Chief High Court Judge as the relevant Head of Bench.
The background and context
[11] The complaints arose incidental to litigation involving a forestry investment
scheme known as the “Trinity Investment” or the “Trinity Scheme”.
[12] Dr Muir, a taxation expert, was the architect of the scheme and in 1996 he and Mr Bradbury (his legal partner) set the scheme up. Messrs Bradbury and Peebles, together with others, were investors in the scheme and claimed certain expenses associated with their investments in the scheme as deductions against other income tax.
[13] The CIR disallowed the deductions and the plaintiffs objected. Litigation followed in 2005: Accent Management Ltd v Commissioner of Inland Revenue.2
[14] Justice Venning was the trial Judge. He found the Trinity Scheme amounted to tax avoidance and entered judgment accordingly. Dr Muir gave evidence at the trial and during the course of his judgment Justice Venning criticised Dr Muir’s approach to the litigation, the manner in which he had discharged his discovery obligations and his lack of candour in giving evidence.
[15] Prior to trial and during a pre-trial management conference, the possibility of a site visit to view the subject forest had been raised by one counsel. In the context of this possibility Justice Venning indicated that he did not think a site visit would be particularly helpful or necessary as “he knew a little bit about forests”. He said he “had had an interest in a forest for fifteen years”. In respect of this pre-trial exchange, the Court of Appeal were later to note that “[i]t appears to be common ground that the Judge said that he was not sure what the benefits would be from such
a view, and that aspect was not thereafter mentioned again.”3
[16] This background provides helpful context, particularly in the perspective it gives to subsequent events and their sequence. As recorded by the Court of Appeal, no further mention was made of the Judge’s pre-trial advice about his interest in a forestry investment during the more than seven weeks of hearing of Accent Management Ltd v Commissioner of Inland Revenue. No question or demur was raised about the Judge’s fitness to hear the case until after he had delivered his
judgment on 13 February 2006 and the issue of costs arose.
2 Accent Management Ltd v Commissioner of Inland Revenue (2005) 22 NZTC 19,027.
3 Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA) at [70].
The application for recusal
[17] Following judgment the CIR sought costs against the plaintiffs and, in particular, sought indemnity non-party costs against Dr Muir personally. In response to the CIR’s application, Dr Muir filed a memorandum (followed by a formal application to the Court), inviting Justice Venning to recuse himself from dealing with the issue of costs on three grounds: first, because of the adverse comments the Judge had made about Dr Muir in the judgment; second, because Dr Muir and his colleagues had apparently fallen out with two forestry consultants who were co- directors in the Tahakopa Forest Trust Ltd. These co-directors, Messrs Janett and Hedges, had written a feasibility report about stumpage values in another capacity for Dr Muir in 1995 on the letterhead of a company totally unconnected with Tahakopa Forest Trust Ltd. It is said this feasibility report became “important evidence” in the trial before Justice Venning and that the animosity that had grown up between Dr Muir and Messrs Janett and Hedges must have been known to the Judge and impliedly must have influenced his judgment in a manner prejudicial to the plaintiffs. However, I note the feasibility report in question was in the form of a series of tables which did not attribute authorship and the report did not assume any importance in the trial.
[18] The Judge dismissed these first two grounds stating, inter alia, that his association with Messrs Janett and Hedges was slight and confined to the forestry investment they were coincidentally co-directors and investors in; and that as he had no knowledge whatsoever of any relationship between Dr Muir and Messrs Janett and Hedges, this had no bearing on his judgment in Accent Management Ltd v Commissioner of Inland Revenue.4
[19] The third ground advanced by Dr Muir in support of recusal was couched as a “small suspicion” that Justice Venning, by virtue of his involvement in a private forestry scheme, may possibly have been exposed to income tax/gift duty or
conveyance duty risks at the time the scheme was established and this would be
4 Accent Management Ltd v Commissioner of Inland Revenue (2006) 22 NZTC 19,758, referring to Accent Management Ltd v Commissioner of Inland Revenue, above n 2.
known to the CIR, the defendant in Accent Management Ltd v Commissioner of
Inland Revenue.
[20] It is important to set out in some detail the specifics of what was argued in support of this particular ground of appeal, because the same allegations endured to ultimately become the central issue for the Commissioner’s opinion in the judicial complaint proceeding, some four years later.
[21] Specifically, on the ‘knowledge’ point, Dr Muir deposed that:
[t]he peculiar circumstance of an applicant (seeking a substantial award of costs) and the Judge in the cause sharing (possibly relevant) information unknown to the respondent is exacerbated here by the statutory restraints upon the defendant’s ability to disclose that information to me.
[22] Dr Muir’s reference to “the defendant” was a reference to the CIR.
[23] Dr Muir was represented at the recusal hearing by Mr Judd who, in written submissions filed in advance of the hearing, elaborated on this “possibly relevant information” allegedly shared by the Judge and the CIR. The background to the submission was as follows:
74 ... At some stage Tahakopa Forest Trust Ltd ceased to be the beneficial owner of the land and became a trustee. Because use of the word “trust” in a company name required the express approval of the Registrar of Companies in 1992 and that approval was usually only granted where the company involved was to be or to become a trustee ..., it would appear that Tahakopa Forest Trust Ltd was made the beneficial owner at the time of acquisition in order to avoid the consent provision in the Land Settlement Promotion and Land Acquisition Act 1952 ... and was then made the trustee soon after the acquisition. However the absence of further s. 18 LSP declarations on the Land Registry files or filings in the Companies Office file of special resolutions relating to a subsequent conveyance of the land may suggest a later date. Only the production of the trust deed and/or the annual accounts (which Your Honour and likely the defendant too will have copies of) or the relevant instrument(s) of conveyance of the beneficial interest from Tahakopa Forest Trust Ltd to its investor will establish the date of transfer.
75 A fair minded person could well in the circumstances harbour some small suspicion that some step has not been properly taken to transfer the beneficial ownership, and this is known by the defendant (through the returns and other information which taxpayers are required to provide), especially as such a step would usually require an assessment of gift duty and conveyance duty and possibly income tax. Alternatively the facts might
show that the Company is really a unit trust for tax purposes and it is
“holding its breath” because that has not been its tax return position.
[24] In dismissing these suggestions, that possible irregularities around the beneficial ownership of the forestry land may have given rise to taxation risks for the Tahakopa Forest Trust Ltd, and the further allegation of a shared knowledge of such matters between the Judge and the CIR that may have influenced his approach to the Trinity case, the Judge said:
[18] Mr Judd next submitted that as I had an interest in a forestry investment the defendant Commissioner could attempt to apply the Income Tax Act adversely to those interests and there may be “some small suspicion” all has not been done that should have been done in relation to investment in which I have an interest which may in some way have influenced my approach to the case. With respect to that submission I simply cannot accept it. The forestry investment that I have an interest in was established in 1992. Advice was taken at the relevant time from an independent firm of solicitors and also from an accountant. All appropriate records have been completed with the Commissioner of Inland Revenue since then. The matters postulated by Mr Judd are simply not an issue.
[25] In the outcome, the Judge declined Dr Muir’s application to recuse himself:
see Accent Management Ltd v Commissioner of Inland Revenue.5
[26] In the same decision the Judge also declined an application by the plaintiffs to have the judgment in Accent Management Ltd v Commissioner of Inland Revenue recalled.
[27] Both the recusal and the recall decisions were appealed and heard separately on appeal. Both were dismissed by the Court of Appeal. The recusal decision was reported as Muir v Commissioner of Inland Revenue.6 The recall decision was
reported as Accent Management Ltd v Commissioner of Inland Revenue.7
5 Accent Management Ltd v Commissioner of Inland Revenue, above n 4.
6 Muir v Commissioner of Inland Revenue, above n 3.
7 Accent Management Ltd v Commissioner of Inland Revenue [2007] NZCA 231, (2007) 23
NZTC 21,366.
The Court of Appeal’s decision on the recusal issue
[28] It is important to review also certain passages of the Court of Appeal’s subsequent judgment on the recusal issue in 2007, in order to appreciate that the same suspicion that was voiced to the Judge about possible tax issues between the CIR and Tahakopa or its investors, arising from the circumstances in which Tahakopa acquired beneficial ownership of the forestry land, were also advanced before the Court of Appeal. The Court of Appeal dealt with this and other bias allegations under the head of presumptive bias.
[29] The bias argument before the Court of Appeal was directed to allegations of both apparent and presumptive bias. The matters raised under the heading of apparent bias were the Judge’s criticism of Dr Muir’s veracity and the way in which an association between the Judge and Messrs Hedges and Janett would or could have (supposedly) influenced the Judge. The matters raised under the heading of presumptive bias were primarily focussed on the Judge’s financial interest in the Tahakopa forestry investment.
[30] The Court outlined as follows its preferred test for determining whether conduct in question is likely to lead an objective observer to conclude that a fair and impartial hearing was unlikely:8
In our view, the correct inquiry is a two-stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual inquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second inquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. ...
[31] At a later part of the judgment the Court said:9
We cannot stress too strongly that the apprehension of bias principle requires the identification of whatever it is which might lead a Judge to decide a case other than on its legal and factual merits and, as was said in Ebner at p 345,
8 Muir v Commissioner of Inland Revenue, above n 3, at [62].
9 At [94].
“an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
[32] The allegation of irregularities around the establishment of the Tahakopa forestry investment in 1992 and in particular the time at which Tahakopa Forest Trust Limited became a trustee and acquired beneficial ownership of the land were argued before the Court, in conjunction with the same insinuation of a ‘shared knowledge’ between the Judge and the CIR. This is evident in the following extracts from the written submissions of Mr Gedye, who appeared as counsel for Dr Muir in the Court of Appeal. Inter alia, Mr Gedye submitted that:
26. … There is a real possibility that forestry tax issues may one day arise between CIR and Tahakopa or its investors. (They may already have done so.) One party in the costs case, the CIR, has access to details of the Judge’s investment business and taxation affairs. Known events in the Tahakopa investment which could attract the attention of the Commissioner include the rearrangement resulting in Tahakopa divesting itself of the benefit interest and becoming a mere trustee, the rearrangement of shareholdings in 1997 and 1998 and deductions made by either the company or the investors. There could potentially be myriad other forestry-tax issues
...
2.6 On 27 July 1992, the Judge signed two statutory declarations under the LSP Act. These stated, inter alia, that the purchaser Tahakopa had entered into the transaction solely on its own behalf as the person beneficially entitled thereunder.
2.7 Tahakopa is now a trustee company which holds the land and forest
in trust for a range of beneficiaries: Judge’s Minute dated 30 September
2005. It is not known when Tahakopa transferred beneficial ownership: The LSP Act was repealed from January 1996. No LSP declarations (which would have been necessary under the Act once Tahakopa declared a trust of the land) are recorded prior to that date.
...
2.10.1 Tahakopa owns the land and forest but does not now carry on any business in relation to the forest. It holds the land and forest as a bare trustee. It is not known when Tahakopa, by virtue of declaring a trust of its assets in favour of the investors ceased to carry on the business of forestry.
2.12 The Tahakopa forestry investment must involve actual or potential tax issues including GST, income tax and/or gift duty issues. Both Tahakopa (prior to becoming a trustee), and the investor group subsequently carrying on the business (after the declaration of the trust) would have to file GST and income tax returns with the Commissioner. Thus tax issues, including the deductibility of expenses, can be assumed to exist within the Judge’s Tahakopa investment structure. The Judge at para [18] stated “All appropriate records have been completed with the Commissioner of Inland Revenue since then” (i.e. 1992).
[33] In considering whether the Judge’s forestry investment was likely to involve similar tax issues as those with which the Trinity scheme was concerned, the Court had regard to the facts Mr Gedye had put forward relating to the incorporation of the Tahakopa Forest Trust Ltd, and found it “necessary to intrude further facts”. These facts included recording that the Judge had signed two statutory declarations under the Land Settlement Promotion and Land Acquisition Act 1952 (“LSP Act”) in 1992, stating that Tahakopa had entered into the transaction solely on its own behalf as the person beneficially entitled thereunder; and that Tahakopa is now a “trustee company
which holds the land and forest in trust for a range of beneficiaries”.10 The Court
concluded its traverse of these background facts by observing that when due regard was had to the facts, they were “...quite uncontroversial and unremarkable”.11 In relation to all issues of presumptive bias alleged as arising from the Judge’s interest in the Tahakopa forestry investment, the Court observed:12
…. the judge has said, in a judgment, that all income tax obligations have been complied with by Tahakopa. And as we observed at the hearing, it would be startling if counsel for the commissioner [of Inland Revenue] had stood by in a situation such as this if there had been any suggestion of income tax impropriety in the case of Tahakopa.
...If anything, in the complete absence of evidence to the contrary, the Judge’s investment, unlike Trinity, can be assumed to be subject to the normal forestry taxation regime.
In the result we reject on the facts the complaint as it is made under this head.
[34] The Appeal was dismissed on all grounds. The allegations of bias arising from the Judge’s criticism of Dr Muir and from association with Messrs Hedges and Janett were not taken further by the plaintiffs and did not become the subject of any complaint to the Commissioner. However, the allegation of taxation irregularities around the establishment of the Tahakopa forestry investment in 1992 and the CIR’s
‘shared knowledge’ of these alleged irregularities, became very much the focus of
the second complaint to the Commissioner.
10 Muir v Commissioner of Inland Revenue, above n 3, at [74] and [75].
11 At [78].
12 At [80]-[83].
[35] The ‘shared knowledge’ issue adverted to by Dr Muir in his affidavit, the “small suspicion” referred to by Mr Judd in his submission, and Mr Gedye’s submission to the Court of Appeal about a “real possibility of tax issues” arising between the CIR and Tahakopa over the rearrangement of Tahakopa’s affairs, developed into a bald assertion of collusion between the Judge and the CIR, styled
by the plaintiffs as an “asymmetry of knowledge”,13 by virtue of which it was
alleged the CIR had the advantage in litigation presided over by the Judge in a biased manner.
Other related proceedings
[36] In addition to the cases already referred to, a number of other proceedings flowed from the Trinity litigation. It is unnecessary to traverse them in any detail here.
[37] Of relevance however is that Justice Venning’s substantive judgment in Accent Management Ltd v Commissioner of Inland Revenue was upheld by both the Court of Appeal14 and the Supreme Court15 as legally and factually sound. The relevance is that, not only are the allegations of apparent or presumptive bias or ulterior motive on the part of the Judge in determining that the Trinity taxation scheme was tax avoidance unproven, as the Court of Appeal found in Muir v Commissioner of Inland Revenue,16 there is no established or “logical connection” between these allegations and the legal and factual soundness of the decision to suggest the case was not decided on its merits.17
[38] This has particular relevance to the first complaint made to the Commissioner
(directed to s 4(2A) Judicature Act 1908), as the following excerpt from the
13 First and second restatements of the plaintiffs’ complaints to the Commissioner.
14 Accent Management Ltd v Commissioner of Inland Revenue [2007] NZCA 230, (2007) 23
NZTC 21,323.
15 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2008] NZSC 115, [2009] 2
NZLR 89.
16 Muir v Commissioner of Inland Revenue, above n 3.
17 In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345, the High Court of Australia formulated as the relevant test “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
judgment of the Supreme Court in Saxmere Company Ltd v Wool Disestablishment
Company Ltd (Saxmere) makes clear:18
… it does not at all follow from the fact that the judge may have overlooked, or failed to heed, the requirements of (s 4(2A)) that there are reasonable grounds for suspecting that the Judge has not brought an impartial mind to the resolution of a particular case.
[39] I make this point because the now historic fact that Accent Management Ltd
& Ors v Commissioner of Inland Revenue has been upheld as soundly based in fact and law by both the Court of Appeal and Supreme Court militates against its reasoning and conclusions having been influenced improperly by an oversight of or failure to heed the provisions of s 4(2A).
The Commissioner and the Act
[40] The purpose of the Act is to enhance public confidence and, to protect the impartiality and integrity of the judicial system by providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office; establishing an office for the receipt and assessment of complaints about the conduct of Judges; and providing a fair process that recognises and protects the
requirements of judicial independence and natural justice.19
[41] The passing of the Act confirmed New Zealand’s commitment to the United
Nations’ Basic Principles on the Independence of the Judiciary.20
[42] In terms of natural justice, Principle 17 of the United Nations Basic Principles provides, inter alia, that a Judge against whom a complaint is made “shall have the right to a fair hearing”.
[43] The Commissioner’s functions under the Act are:21
18 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 76.
19 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 4.
20 Hansard 13 May 2004, 617 NZPD 12,934. See also second reading: Hansard 11 May 2004, NZPD 12,794.
21 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, s 8.
(a) to receive complaints about Judges and to deal with those complaints in the manner required by this Act;
(b) to conduct preliminary examinations of complaints;
(c) in appropriate cases, to recommend that a Judicial Conduct Panel be appointed to inquire into any matter or matters concerning the conduct of a Judge.
[44] Section 15(1) requires the Commissioner to acknowledge receipt of a complaint and to deal with it promptly by conducting a preliminary examination and
forming an opinion as to whether:
(a) there are any grounds for exercising his or her power under section
15A to take no further action in respect of the complaint; or
(b)
there are any grounds for dismissing the complaint under section 16;
or
(c)
the subject matter of the complaint, if substantiated, could warrant referral of the complaint to the Head of Bench under section 17; or
(d)
the subject matter of the complaint, if substantiated, could warrant consideration of the removal of the Judge from office by way of a
recommendation under section 18. [45]
In th
e course of conducting a preliminary examination into a complaint, the
Commissioner may seek the subject Judge’s response: (s 15(2)). Section 15(3) requires the Commissioner to act in accordance with the principles of natural justice. In this context, the principles of natural justice necessitate that the Commissioner must afford a subject Judge the opportunity to respond to any adverse or potentially adverse comment or matter which, if substantiated, could trigger the exercise of the Commissioner’s powers under ss 17 or 18.
[46] When conducting a preliminary inquiry, the Commissioner has a discretion under s 15(4) to:
(a) make any inquiries into the complaint that he or she thinks appropriate:
(b) obtain any court documents (including, for example, the transcript of a hearing) that are relevant to an inquiry under paragraph (a): and
(c) consult the Head of Bench.
[47] However, the Commissioner does not have coercive powers in relation to the inquiry process, in contrast to other legislation providing for complaints processes.22
Thus he is unable to compel the provision of information through interview or examination of persons.
[48] Section 15(5) requires the Commissioner, on completion of a preliminary examination and the forming of an opinion under s 15(1), to take one of the following steps:
(aa) exercise his or her power to take no further action in respect of the complaint (section 15A); or
(a) dismiss the complaint (section 16); or
(b) refer the complaint to the Head of Bench (section 17); or
(c) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into any matter or matters concerning the conduct of a Judge (section 18).
[49] Section 15A was introduced as an amendment to the Act in 2010 by the Judicial Matters Bill 2008. This was in response to an identified lacuna for the disposition of cases involving complaints that did not fall within the existing grounds for dismissal but nevertheless raised no concerns that required consideration by the
relevant Head of Bench, “let alone by a Judicial Conduct Panel”.23 Section 15A
expressly provides:
15A Commissioner’s power in certain circumstances to take no further action in respect of complaints
(1) The Commissioner may take no further action in respect of a complaint if satisfied that further consideration of the complaint would, in all the circumstances, be unjustified.
22 The Ombudsmen Act 1975, the Independent Police Conduct Authority Act 1988 and the Privacy
Act 1993.
23 Judicial Matters Bill 2008 (explanatory note) at 2.
(2) Reasons why further consideration of a complaint would, in all the circumstances, be unjustified, may be or include all or any of the following that apply to the complaint:
(a) that the complaint has been resolved to the complainant’s satisfaction following an explanation from the Judge who is the subject of the complaint:
(b) that the complaint is genuine and made in good faith, but is based on a misunderstanding:
(c) that the complaint is one in respect of which the Commissioner, having started the preliminary examination required by section 15, concludes that there is no reasonable prospect of there being available to him or her information that would enable him or her to form an opinion on the matters specified in section 15(1)(b), (c), and (d).
…
(4) Subsection (2) does not limit subsection (1).
(5) If the Commissioner exercises his or her power under this section to take no further action in respect of a complaint, he or she must give the complainant and the Judge who is the subject of the complaint written notification stating–
(a) that the Commissioner has exercised that power; and
(b) the grounds on which he or she is satisfied that further consideration of the complaint would, in all the circumstances, be unjustified.
[50] Under s 17 of the Act the Commissioner must refer a complaint to the relevant Head of Bench (unless exercising the power under s 15A to take no further action; or dismissing the complaint under s 16; or recommending the appointment of a Judicial Conduct Panel under s 18) and is required to give notice of the referral to the complainant and the subject Judge but is not required to give reasons for the referral.
[51] Section 18, which the Commissioner noted in respect of each complaint was the sole focus for the plaintiffs, provides for the Commissioner’s power to recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire into the alleged conduct, which, if established, may warrant consideration of removal of the Judge. In the event of such a recommendation, the Commissioner must give reasons for the decision and notify those to the complainant and the subject Judge.
[52] The functions of a Judicial Conduct Panel are set out in s 24.
[53] It is a matter for the Attorney-General’s discretion as to whether a Judicial Conduct Panel is appointed following a recommendation under s 18. If so appointed, a Panel must conduct a hearing exercising the powers of a Commission of Inquiry. In the event that a Panel is appointed, the Attorney-General is required to appoint and instruct special counsel to present the allegations before the Panel in an impartial manner and to assist the Panel on matters of procedure or applicable law. The subject Judge is entitled to appear and be heard at the hearing and to be represented by counsel. The Panel may consent to any other person appearing at the hearing and being represented by counsel but there is no prescribed right for complainants to appear and/or be represented at a Panel hearing. Complainants do not have ‘party’ status. A Judicial Conduct Panel hearing is therefore not a lis inter partes in the civil sense.
[54] Following a hearing, the Panel must provide a report to the Attorney-General setting out its findings of fact; and opinion as to whether consideration of removal of the subject Judge is justified; and the reasons for its conclusion.
Jurisdiction
[55] During the Commissioner’s examination of the plaintiffs’ complaints the Judge raised a jurisdictional point in relation to the time at which the alleged events around the incorporation of Tahakopa Forest Trust Ltd in 1992 occurred, given he was not a Judge at that time and the Commissioner’s express functions and powers are to inquire into judicial conduct. The ambit of the jurisdiction is reflected in s 11(1) of the Act, which provides that the Commissioner must receive and deal with every complaint about the conduct of “a Judge”, whether the subject matter of the complaint arose in the exercise of judicial duties or otherwise.
[56] Having given the Judge’s query due consideration, the Commissioner concluded that there may be circumstances that arise during a Judge’s tenure which require disclosure of conduct prior to judicial appointment: for instance, if relevant to a possible recusal; or, if such conduct would adversely affect the Judge’s ability to
later discharge the functions of judicial office in a manner that maintains public confidence in the judicial system. In the latter regard, the Commissioner considered there was an obligation to disclose such matters prior to appointment; and that this disclosure obligation would continue throughout the Judge’s tenure. Failure to make such a disclosure would amount to misconduct during the Judge’s tenure.
[57] The plaintiffs’ allegation is that this situation applies to events surrounding the incorporation of the Tahakopa Forest Trust Ltd in 1992; and that the Judge had (and continues to have) an on-going disclosure obligation in relation to those events. Mr Judd said the obligation forms a continuum that started before the Judge’s appointment and runs to this day. What Justice Venning would have known in 1992 and should have disclosed in 1995 (when he was appointed a Master), and again in
2002 (when appointed a High Court Judge), and again in 2003 (when allocated the Trinity file), and again in 2003-2004 (before commencing hearing the Trinity case), and again at the time of the recusal application and in an on-going manner since, was the following:
[H]e should have disclosed much more than that he had had an interest in a forest for 15 years. He should have disclosed that he personally is an investor in a forestry business, that he is a partner in a partnership carrying on the forestry business and a member of the management committee which runs that business, the location and size of the land on which the forestry business is conducted, and that he has been claiming tax deductions in respect of the expenditure arising from the forestry investment and reducing his taxable income accordingly. He should have disclosed that the purchase was made by Tahakopa Forest Trust Ltd of which he was one of the principal founding shareholders and one of the three directors, that he had made the statutory declarations, that there had been earlier declarations by Janett giving a different date for the agreement for sale and purchase, that Tahakopa formally became a trustee shortly thereafter without further landless declarations being made, and that no conveyance duties, stamp duties or gift duty had been paid.24
[58] As can be seen, the ‘disclosures’ there listed involve essentially the same
matters that were advanced before the Judge and the Court of Appeal on recusal and dismissed by both.
24 A list of the possible statutory sanctions for such offences and breaches was annexed to
Mr Judd’s submissions.
[59] Notwithstanding, the plaintiffs continue to assert that had these facts been made available at the time the Judge was being considered for judicial appointment, those responsible for evaluating whether or not he should be appointed “would have engaged in the same reasoning processes by reference to the LSP Act and relevant income tax and other legislation, as that engaged in by the plaintiffs, with the
consequence that the Judge would not have been appointed”.25 However, this
reasoning process, as contended for, rests on what the plaintiffs claim to be “the undisputed facts” resulting in either, false declarations or LSP Act breaches, plus failure to pay duties, and other issues.
[60] As will become plain, however, no such facts have been established. Most significantly, not a shred of evidence has emerged of any knowledge on the part of the Judge of any such irregularities, if they had occurred. Significantly also, and confirmatory of this, is that neither Tahakopa Forest Trust Ltd nor its legal advisers have ever been notified of any irregularities by the Inland Revenue Department. Rather, the evidence is that all tax obligations arising from that forestry investment have been complied with by the Judge.
The approach on review
[61] The established principles governing judicial review are directly applicable to the Commissioner’s decisions. A contextual dimension has been added to these principles by the application of the Act and its purposes in Wilson v Attorney- General (Wilson).26 In the context of the Act, the Full Court of the High Court in Wilson made the following observations.
[62] The challenge on review of a decision by the Commissioner under the Act is to the formation of an opinion. An opinion so formed must be honestly held,
25 The third implied complaint which I shall come to in due course, is an allegation by the plaintiffs that the Commissioner did not consider an alleged failure by the Judge to make such disclosure during his appointment process.
26 Wilson v Attorney-General [2011] 1 NZLR 399.
reasonably open on the facts available and based on the correct legal standard.27
This reasoning followed a similar approach taken by courts in other jurisdictions.
[63] The test for determining evidential sufficiency in forming an opinion under the Act, and particularly an opinion to recommend the appointment of a Judicial Conduct Panel, is whether the facts alleged in the complaint are sufficiently plausible to justify further investigation and the conduct, if established, is serious enough to warrant consideration of removal rather than referral to the Head of Bench.28 The Full Court used the phrases “sufficiently plausible” and “prima facie sufficient basis in fact” interchangeably in this respect.29 Essentially, the test is for some cogent evidence, sufficient to constitute a minimum threshold, upon which a Judicial Conduct Panel could find any charges made out, and the complaint must clearly be of sufficient substance to warrant such a serious course.
[64] In approaching his decision-making task the Commissioner is required to identify an appropriate standard against which to consider the impugned conduct, as he cannot properly carry out his function without undertaking that task. All material issues complained of are to be considered against the standard identified. This necessitates the carrying out of “an appropriate evaluative exercise”.30
[65] The Commissioner’s decision on a complaint under s 15 of the Act is
provisional. He does not find the facts.
Overview of the Commissioner’s decision
[66] The Commissioner was met with a series of overlapping, evolving and increasingly convoluted complaints from the plaintiffs, sent over time. The process he adopted in examining and forming an opinion about each complaint under s 15(1) of the Act, was extremely careful and thorough. Having divided the complaints into four categories he approached his task by then identifying and addressing the key
elements of each complaint before conducting an analysis of the available
27 Wilson v Attorney-General, above n 26, at [44].
28 At [44].
29 See cross-reference at [69] to comments at [44].
30 At [75].
information and forming the requisite opinions. In doing so, he applied each step required under the Act in a logical sequence and methodical manner. This approach was evident even in his examination of the implied third complaint, although that was essentially subsumed in consideration of the first two complaints.
[67] In the process of conducting his preliminary examinations, the Commissioner ensured that all allegations were put to the Judge for his response, in accordance with the requirements of natural justice under the Act. The plaintiffs were also afforded the opportunity to consider the Judge’s responses, subject only to certain exceptions where, in the exercise of the Commissioner’s statutory discretion, he determined that confidentiality should be maintained.
[68] The Commissioner’s decisions were reached under ss 15(1)(d), 15(5)(aa) and
15A of the Act in each case, based on his considered opinion that the Judge’s responses to the allegations were credible and confirmed by third parties. The Commissioner was satisfied that allegations of impropriety on the part of the Judge were speculative and implausible, and did not raise any matters that should be taken further. On that basis, he determined it would not be open to a Judicial Conduct Panel to form the view that the Judge had acted dishonestly, engaged in deliberate wrong-doing or conducted himself in a manner that fell so far short of accepted standards of judicial behaviour that the ultimate sanction of removal under s 18(1)(b) was warranted. Nor was an inquiry into the alleged conduct necessary or justified under s 18(1)(a). It was the Commissioner’s opinion, on completion of his preliminary examination of each complaint, that none of the matters raised should be taken further because the allegations were not sufficiently plausible to provide a basis for any further action and, in all the circumstances, the Judge’s conduct did not warrant further examination by a Judicial Conduct Panel or his Head of Bench.
[69] In forming these opinions, the Commissioner adopted a particular approach to the four alternative grounds in s 15(1) of the Act and to the related steps required under s 15(5), electing to commence his consideration of each under s 15(1)(d) first. This required the expression of an opinion by the Commissioner as to whether –
(d) the subject matter of the complaint, if substantiated, could warrant consideration of the removal of the Judge from office by way of a recommendation under section 18.
[70] It was open to the Commissioner to adopt this order,31 and to first consider each complaint in the context of s 15(1)(d). It seems he did so because of the plaintiffs’ clearly stated view that removal of the Judge from office was the only outcome acceptable to them. Proceeding on that basis, the Commissioner recorded the order in which he would approach his task as follows:
41. I will start with section 15(1) and consider, in turn, which of the four alternatives specified best accords with the opinion that I have reached about the circumstances involved here. I will refer to all four, but I do not think that I am required to follow the sequence in which they are set out in the Act. I propose to start with paragraph (d) of section 15(1) ...
The Complainants have made it clear that that is the only paragraph that they regard as providing a pathway to what they would see as a suitable outcome to their First Complaint.
[71] I record at this point that the plaintiffs’ focus on the s 4(2A) issues alleged in the first head of complaint has been modified in this judicial review proceeding. Their desired outcome is now for the Commissioner’s decision on that complaint to be one of referral back to him for consideration as to whether the complaint should be referred to the Head of Bench, rather than a recommendation for the appointment of a Judicial Conduct Panel. This change of direction appears to have emerged as a consequence of the Commissioner treating s 17 of the Act as a default provision (a matter I will come to). The plaintiffs now concede that recommending the appointment of a Judicial Conduct Panel in respect of this complaint may be disproportionate, but nevertheless seek some consequence for the alleged
contravention of s 4(2A).
31 Whether it is necessary for a Commissioner to form an opinion on each of the alternative steps in s 15(1) was referred to and addressed by Toogood J in Siemer v Judicial Conduct Commissioner [2012] NZHC 1481 at [26]. If an opinion is able to be reached on one particular ground, it may be unnecessary to go on and form an opinion on the other alternative grounds. In the present
case the Commissioner did choose to examine each alternative ground in s 15(1) and to form an opinion on each and to do so in a particular order. He did not have to consider the steps seriatim as they are not sequentially dependent or conjunctive.
First complaint: s 4(2A) Judicature Act 1908
[72] This concerned an alleged knowing breach of s 4(2A) Judicature Act 1908 by the Judge in failing to disclose to the Chief High Court Judge in 200432 that he was a director and member of the management committee of Tahakopa Forest Trust Ltd (the Judge had become one of the three initial directors of the company in 1992 when the company was incorporated.) The plaintiffs contend that if the Judge’s failure to disclose this in 2004 was a knowing breach of s 4(2A), this amounted to
breaking his judicial oath (in particular, the requirement that a Judge must serve Her Majesty “according to law”); breaking the law in a material respect; misleading the Court of Appeal in the recusal judgment; misleading the Chief High Court Judge over the allocation of the Trinity proceedings to him; and acting corruptly in accepting public money (his judicial salary).
[73] Section 4(2A) of the Judicature Act 1908, which came into force on 20 May
2004, provides:
A Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief High Court Judge is satisfied that the employment or other office is compatible with judicial office.
[74] In his response to this complaint, Justice Venning acknowledged that when s 4(2A) came into force in 2004, it had not occurred to him to seek the approval of the Chief High Court Judge for his directorship of Tahakopa Forest Trust Ltd. He said:
I accept that I did not obtain approval from the Chief High Court Judge to hold the office of director of Tahakopa Forest Trust Ltd in accordance with s 4(2A).
I do not, however, accept the submission by the complainants that it is likely the Chief High Court Judge would have required me to resign the directorship and/or put the shareholding into a blind trust before giving such approval.
Section 4(2A) was inserted at the same time as a number of new provisions were inserted in the Act to provide for part-time judges in the High Court. In my submission the section was clearly directed at the need to ensure that, if a person was to serve as a part-time judge, then they must first obtain the
approval of the head of the High Court Bench that any employment or other office they might hold during the period they were not sitting as a judge was compatible with the office of a judge.
However, I accept it is arguable that taking a broad view of the section it could be construed to apply to offices held by full time judges as well.
The complainants surmise that Judges would have been advised of the section and the need to obtain approval. Unfortunately that was not the position. No formal advice was issued when the section was first introduced. I believe most Judges learnt of the section following the publicity of the Saxmere case. I suspect that there are a number of sitting Judges apart from myself who held directorships or other offices which would come within the ambit of s 4(2A), who did not obtain approval on the passing of the amendment.
In any event, in the present case I resigned from the office of director of
Tahakopa Forest Trust Limited on 1 April 2008.
The object of the section must be to ensure that the office, be it a directorship, trusteeship or other office, is compatible with judicial office and would not affect the Judge’s ability to carry out his or her judicial function.
I do not believe my limited involvement as a director of the company affected my ability to act as a Judge in any way. The only times that I have been called upon to give any consideration to my involvement with the company has been in response to the matters raised by the complainants.
Nor, in my submission, can the failure to obtain formal approval under s 4(2A) possibly be seen to impact on the issue of my impartiality.
[75] The complainants did not, however, accept the Judge’s explanation to the Commissioner that no formal advice had been received by members of the judiciary about s 4(2A) of the Judicature Act 1908 at the time of its enactment in 2004; nor his statement that he believed most Judges had only learnt about, or appreciated the
ambit of the section, as a result of the decision in Saxmere.33
[76] Justice Venning’s advice on this matter was however supported by the former Chief High Court Judge, who confirmed that in common with other Judges he had also assumed that the provision was to be understood and applied in the context of the employment of part-time Judges only. The Chief Judge said he had had no occasion to consider the provision in his role as Chief High Court Judge, until he received an unrelated inquiry from a member of the public in 2009. He had become
aware that s 4(2A) was featuring in the Saxmere litigation, although little guidance about the ambit of the section flowed out of that litigation. The Chief Judge concluded his advice to the Commissioner by stating:
On 1 December 2009 I formally drew the existence of s 4(2A) to the attention of all Judges and Associate Judges of the High Court. I noted, in particular, difficulties in interpreting the precise meaning of the provision. Amongst other things, I noted potential difficulties over the meaning of the words “other office” used in the section.
To the best of my knowledge, High Court Judges, including the Hon Justice Venning, were not aware of the potential impact of this provision until the second half of 2009. In particular, it was not until then that the possibility of the section covering the directorships of private companies was appreciated.
The Commissioner’s opinion
[77] In considering first whether the subject matter of this particular complaint, if substantiated, could warrant consideration of the removal of the Judge from office by way of recommendation under s 18, the Commissioner identified three matters that would have to be established in order for him to form such an opinion; together with four further factors that may also need to be established. Thus, at the outset, he settled relevant measures against which to evaluate available information relating to the complaint and its circumstances, and against that framework proceeded to conduct a finely detailed analysis of the available information, including having regard to the context of the Judicial Matters Bill 2008 and to pertinent passages in the Supreme Court’s judgment in Saxmere.
[78] The Commissioner considered also the explanations he received from Justice Venning, and was satisfied that the Judge had explained himself in a way that was both “open and candid”. The Commissioner noted that the Chief High Court Judge’s own experience of s 4(2A) was “broadly supportive of Justice Venning’s position”.
[79] Having reviewed the available information and made necessary credibility assessments the Commissioner turned to consider his preliminary findings against the seven factors he had identified at the outset, some or all of which would have to be established if a s 15(1)(d) opinion were to be formed and a s 18 inquiry consequentially recommended as necessary or justified. In the event, the
Commissioner found there was no prospect that any of those identified factors, either singly or in combination, would be established following further inquiry by him.
[80] In the process the Commissioner referred to the plaintiffs’ view that if he found their claims plausible, that must lead him to the conclusion that he should recommend to the Attorney-General the appointment of a Judicial Conduct Panel under section 18(1) of the Act and discounted this, observing that the power under s 18(1) is discretionary.
[81] Having thus made inquiries of the Judge and received all other information that might be regarded as relevant to the circumstances of the complaint, the Commissioner formed the opinion that the first complaint was not plausible and did not warrant the exercise of his power of recommendation under s 18(1). His opinion under s 15(1)(d) was that, while the Judge:
65. ... may, arguably, have overlooked or not appreciated the requirements of section 4(2A), ... it does not at all follow, as the Supreme Court observed in another context, that there are reasonable grounds for suspecting that the Judge has not brought an impartial mind to the resolution of the case then before him. Nor does it follow that he has acted in a manner inconsistent with his office as a Judge.
[82] The Commissioner thought it credible that the Judge’s knowledge of s 4(2A)
of the Judicature Act 1908 was, at the most, limited, until mid 2009.
[83] Having formed his opinion under s 15(1)(d), the Commissioner turned next to consider whether the first complaint should be dismissed under ss 15(1)(b) and 16(1) of the Act, as not meeting the required threshold. This he did under two heads: first, as to whether the complaint was “frivolous” or “vexatious; secondly, as to whether “the complaint was about a judicial decision or other judicial function, that is or was subject to a right of appeal or right to apply for judicial review.”
[84] Under the first head of “frivolous” or “vexatious”, the Commissioner observed that the plaintiffs’ allegations about the Judge and s 4(2A) were made:
78. ... without any firm basis, rather they are driven by speculation on their part and therefore can be seen to have no reasonable ground upon which they are based. Accordingly, the inferences that the complainants seek to draw
about the Judge can be fairly described as unfounded and lacking an “air of reality” about them.
[85] However, the Commissioner also went on to conclude that he could not “on balance, and after much careful thought” form the requisite opinion under s 15(1)(b) with the necessary degree of confidence.
[86] That led him to consider whether the complaint had not been made “in good faith”. Similarly, he found here an insufficient basis on which to reach a firm conclusion that bad faith was the “predominant” factor, stating:
81. The lodging of this complaint has evidently been undertaken by the Complainants deliberately and in all seriousness. They do have an end in view and that is to cast doubt upon the fitness of Justice Venning – and consequently upon one of his judgments in particular (the substantive decision). But an imputation of a lack of good faith suggests the existence of bad faith. I do not consider that there is a sufficient basis for me to conclude that bad faith is the predominant factor here.
[87] The Commissioner next embarked upon a discussion as to whether the complaint was in reality about “a judicial decision or other judicial function that is or was subject to a right of appeal or right to apply for judicial review”. His essential query under this head was whether the first complaint could be seen as yet another attempt to re-litigate Justice Venning’s substantive judgment in Accent Management
Ltd v Commissioner of Inland Revenue,34 noting that the judgment had already been
the subject of unsuccessful appeals to the Court of Appeal and Supreme Court: thus the plaintiffs had “exhausted all rights to contest the substantive decision through the Courts”. In deciding however to again give the plaintiffs the benefit of the doubt under this head, albeit by a very narrow margin, the Commissioner said:
85. So can it fairly be said that their present complaint is, in substance and effect, a complaint “about a judicial decision” – an attempt, indirectly, to impugn it? I think there is some validity to that view. But the Complainants have taken care to couch their complaint in such a way that it is ostensibly directed towards the Judge’s conduct rather than towards his decisions.
86. I think it is possible that the First complaint is simply a collateral attack on the substantive decision. However, the Complainants have been careful to couch the First complaint so that it focuses upon the conduct of the Judge as opposed to the decisions themselves. In light of the information that I
have before me, I doubt that I can properly reach the conclusion that the First
Complaint falls within the scope of s 16(1)(f).
[88] Having formed his opinion under ss 15(1)(b) and 16, as well as under ss 15(1)(d) and s 18, the Commissioner turned next to consider s 15(1)(c) of the Act, which required him to form an opinion as to whether the subject matter of the complaint, if substantiated, could warrant referral to the Head of Bench under s 17.
[89] The Commissioner approached this alternative of referral as a type of default option, to be resorted to in the event that none of the alternatives in ss 15A, 16 or 18 had been selected. As he had already considered and determined that neither of the powers in ss 16 or 18 were appropriately to be exercised, the Commissioner proceeded to consider whether he should exercise his power under s 15A, stating that unless he determined to do so, s 17 would require the complaint to be referred to the Head of Bench.
[90] It is convenient at this point to divert for a moment in order to deal with an argument advanced by Mr Judd relating to the treatment of s 17 as a default option by the Commissioner. Mr Judd sought to argue this default approach was wrong in law, submitting that in Wilson v Attorney-General35 a reference by the High Court to referral to the Head of Bench under s 17 as the “default option”, related to the legislation before it was amended to include s 15A. He said that since the 15A amendment, it was necessary to consider not just whether the subject matter of the complaint, if substantiated, could warrant consideration of removal of the Judge
[180] Two questions arise from Mr Bradbury’s response: the first is whether the “bolt from the blue” referred to by Mr Bradbury was in fact new information of a material nature that added anything to the complaint of alleged misconduct by the Judge; the second is whether the first and second complaints, with or without the addition of that information, are in reality the very same complaint of presumptive bias that was first raised at the recusal hearing in 2006?
[181] I have already dealt with the first question in [158]-[160] above. There was no material new information.
[182] In relation to the second question, whilst accepting that the breach of s 4(2A) Judicature Act is a new aspect, the core focus of the plaintiffs’ complaints to the Commissioner has remained throughout the alleged irregularities in the 1992 acquisition of forestry land by Tahakopa Forest Trust Ltd and the alleged failure to disclose those at various points in time. The complaints essentially concern the same allegations of presumptive bias that were advanced in support of recusal five years earlier: that is, of false declarations and an alleged ‘shared knowledge’ between the Judge and the CIR of this and other irregularities connected with the establishment of the Tahakopa forestry investment. That same issue was advanced before the Court of Appeal in Muir v Commissioner of Inland Revenue and nothing of material significance has emerged since. To the contrary, the state of the Judge’s knowledge at the critical time has since been independently established through the inquiries made by the Commissioner during his preliminary examination. Additional allegations, such as those about inadequate disclosure to the Court of Appeal and breach of s 4(2A) of the Judicature Act have not altered that basic premise of
presumptive bias. Nor have details added in along the way altered the nature of the allegations, which can only be regarded as vexatious.
[183] Mr Judd suggested that the Court of Appeal’s recusal decision was relevant only “as part of the series of events leading up to the present judicial review and because the plaintiffs’ complaint to the Commissioner includes failure by the Judge to make full disclosure to the Court of Appeal.” However, as already noted, the issue of presumptive bias, based on alleged ‘shared knowledge’ of irregularities was before the Court of Appeal. It is understandable the Court of Appeal was peremptorily dismissive of this.
[184] In regard to the related assertion that the Court of Appeal was misled by the Judge inadequately disclosing matters to the Court, I concur with the Commissioner’s rejection of this assertion and with his view that “there was no finding by the Court of a material nature that the Judge should have felt required to correct”: and his further finding that the Court of Appeal was not “mistaken as to a number of matters”.
[185] Mr Judd said it was not open to this Court to dismiss the complaints on the ground of collateral attack because the Commissioner had not dismissed them under s 16 of the Act and the Judge had not sought to judicially review that decision. Accordingly, he said, the Judge cannot now ask the Court to make a decision only the Commissioner was empowered to make.
[186] The direct response to this is that the Court has an inherent jurisdiction, indeed a duty, to dismiss a claim that constitutes an abuse of the Court’s processes.59
Therefore, the fact that the Judge has not sought review of the Commissioner’s
decision under s 16 does not prevent the Court from carrying out its duty to exercise the power on a finding of collateral attack.
59 See Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9-10 for a discussion of
the Court’s duty to prevent an abuse of process.
[187] The Supreme Court recently referred to the need for finality in litigation and to the rule of law that final judgments are conclusive.60
[188] In Hunter v Chief Constable of the West Midlands Police Lord Diplock referred to the Court’s duty to exercise the “salutary power” of strike-out as not limited to fixed categories of circumstance.61 That passage was cited with approval in New Zealand by Richardson J in Reid v New Zealand Trotting Conference.62 Reid was in turn cited by the Supreme Court in Chamberlains v Lai, in support of the
principle that “[i]n New Zealand abuse of process has been recognised as an
independent duty of the court to prevent abuse, not limited to fixed categories.”63
[189] In summary, the plaintiffs’ complaints are all founded on the same premise of collusion and bias. They are a continuing allegation of unlawful conduct by the Judge that was first levelled in 2006. I have no difficulty in concluding that the complaints are in substance and effect a further attempt to impugn the decision in Accent Management v Commissioner of Inland Revenue and thus are a collateral attack on that judgment and an abuse of both the judicial complaints procedure and the High Court’s supervisory jurisdiction.
Conclusion
[190] It follows that the application for judicial review is dismissed, there being no reviewable error.
[191] The application is also dismissed as an abuse of the Court’s processes under the inherent jurisdiction of the Court to protect its processes from recurrent challenge.
Judgment
[192] Judgment is entered in favour of the defendant.
60 Redcliffe v Commissioner of Inland Revenue [2013] 1 NZLR 84 (SC).
61 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 536.
62 Reid v New Zealand Trotting Conference, above n 59, at 9.
63 Chamberlains v Lai, above n 54, at [63].
Costs
[193] Costs are awarded in favour of the defendant on a 3C basis, including costs for second counsel on a 3B basis.
[194] Costs are awarded in favour of counsel for Justice Venning on a 3C basis.
Goddard J
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