Muir v Judicial Conduct Commissioner - [2013] NZHC 989

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…

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: [2013] NZHC 989
Decision Date: 7 May 2013

CaseChat Overview and Summary

The plaintiffs sought judicial review of a decision by the Judicial Conduct Commissioner to take no further action in respect of complaints they made about a High Court Judge. The plaintiffs alleged that the Judge had knowingly breached s 4(2A) of the Judicature Act 1908 by not disclosing his interest in a forestry investment, the Tahakopa Forest Trust Ltd, 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. They also alleged 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. They claimed that this “asymmetry” of knowledge between the Judge and the Commissioner of Inland Revenue created a bias which may have prejudiced their own litigation. The plaintiffs sought judicial review on the basis that the Commissioner should have recommended the appointment of a Judicial Conduct Panel to inquire into the Judge’s conduct in respect of the second, third and fourth complaints. The High Court found that the complaints were vexatious and a collateral attack on the substantive judgment in Accent Management Ltd v Commissioner of Inland Revenue. The application for judicial review was dismissed and the plaintiffs were ordered to pay costs.

Orders