Editorial: Wilson case's precedent demands care

The Supreme Court Judge's resignation means questions have been left unanswered and the rules on financial relationships remain blurry. Photo / APN

Opinion

The resignation of Supreme Court judge Bill Wilson brings an end to investigations of the adequacy of his disclosure of a possible conflict of interest in a case before the Court of Appeal three years ago. But it is hardly a satisfactory conclusion from any point of view.

It comes weeks after Justice Wilson successfully challenged a recommendation of the Judicial Conduct Commissioner that the case should go to a Judicial Conduct Panel. Hence, the public has been left with no ultimate ruling on the behaviour of the former judge when he neglected to disclose to litigants a detail of his business association with a lawyer for the other party, Alan Galbraith, QC.

The former judge has denied that the detail - an imbalance in their contributions to a property investment - was a debt to Mr Galbraith. Another former judge, Sir Edmund Thomas, has implied that it was, or at least appeared to be a debt and therefore ought to have been disclosed.

Sir Edmund has gone out of his way to give the issue an airing in the interests, he says, of public confidence in the system. He alerted Chief Justice Elias in July last year, and in November the Supreme Court took the rare step of recalling its decision against the litigants' complaint. Upholding the complaint it said, "The objective lay observer could reasonably consider the judge was at the relevant time beholden to Mr Galbraith."

Taking it further, Sir Edmund laid a complaint with the Judicial Conduct Commissioner, arguing that Justice Wilson had committed "a serious breach of judicial ethics".

He said he was acting for the integrity of the court, for public confidence in the judiciary, the rule of law and the collegiality of the court.

The retired judge said he would "find it difficult to work alongside Justice Wilson".

Strong words. We shall never know now whether they were justified. The Supreme Court's recall of the decision gave Justice Wilson the benefit of the doubt, noting that there were no previous decisions of New Zealand courts to guide him on issues relating to business relationships between judges and counsel.

That recall decision now sets the standard. It may seem a tough one to lawyers who know how to detach professional judgment from personal business interests, but not tough enough for the public, who might expect judges to give up active business partnerships.

Public confidence in the impartiality of judges is vital. In a country the size of New Zealand, it is hard for lawyers to avoid business relationships that raise potential conflicts of interest. When some of the best accept positions on the Bench they surrender a good deal of the income they could earn in private practice. It is asking a lot that they should surrender investment opportunities too.

Yet the pitfalls for them that this case has exposed should cause the judiciary to consider whether they should adopt something such as the blind trust arrangement that political leaders use during their period of sensitive public service.

At the same time, the public should not be too quick to condemn. Good judges are a scarce commodity. A sideline investment probably pales beside their professionalism, their respect for their position and the judgment of their peers.

"Perceived" conflicts of interest are hard to avoid. This case sets a precedent demanding extreme care.