Contents

Chapter 6
Judicial conflicts
of interest

Recusal

6.68While the Commission does not consider there is a need for the establishment of a register of judges’ pecuniary interests, we do think the processes around judicial recusal require attention.

6.69As discussed in Issues Paper 21, the present substantive law on when a judge should not sit on a case by reason of a pecuniary interest was settled by the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd.84  In that case, the Court held that, subject to waiver and necessity, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that there is a real and not remote possibility that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. There is to be no attempt to predict or enquire into the actual thought processes of the judge. Rather, it is necessary first to identify what it is said might lead a judge to decide a case other than on its legal and factual merits, and secondly, to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

6.70The Commission expressed the view that the substantive law relating to when a judge should recuse is in line with the law in other Commonwealth jurisdictions, and does not require amendment. We remain of that view, and none of the submitters who responded to Issues Paper 21 expressed any need for changes to be made to the substantive common law, or for it to be codified.

6.71Although the Commission considers the substantive law to be satisfactory, aspects of the procedure relating to recusals remain unsatisfactory. There are no statutory provisions or rules of court dealing with the process of recusal. Instead, the common law and codes of practice govern the behaviour of New Zealand judges. In Issues Paper 21 we said these codes have no formal legal force, no specific sanctions for non-compliance, and are not generally available to the public. Excerpts from the benchbook that guides the Senior Courts’ Judges were set out in Issues Paper 21.85
6.72The guidelines for judicial conduct are now available on the Courts of New Zealand website.86  These reflect that it is often the judge whose impartiality is at issue who decides whether to hear the case or not.
6.73In Issues Paper 21 we noted in the Court of Appeal there is a “convention” a recusal application is at least discussed with the other members of the hearing panel,87  and that that caution had been further extended to the practice of the hearing panel of three judges deciding a recusal application, not just the impugned judge.

6.74It is easier to deal with the process for recusal determinations in appellate courts, because there is a collegiate body that a judge can refer to. In trial courts, where judges may be faced with urgent applications, often on the eve of trial, and sometimes in remote locations, it is more difficult.

6.75As the particular circumstances of each bench may require different recusal processes, for example because of the number and accessibility of other judges on a particular bench, in Issues Paper 21 the Commission proposed that each court should develop its own recusal process, which should be gazetted by the relevant Head of Bench.

6.76The submissions from the Law Society and the Bar Association both agreed with the Commission that changes should be made to the procedure relating to recusal. The Bar Association submitted the most appropriate solution would be for the Chief Justice, in consultation with other senior members of the judiciary, to establish and publish a protocol which expressly addresses the process issues, and which should apply to all courts and judges.

6.77The Law Society submitted what is needed is a better understood and publicly available set of procedures that operate where a judge or litigant considers recusal may be necessary or there is a likelihood of complaint about the judge’s suitability to hear a case. It agreed with the suggestion in Issues Paper 21 that each court should evolve its own recusal process and make that process available to the public.

6.78Further, the Law Society considered any enhanced procedures should:

6.79We agree these are desirable principles that should be reflected in recusal procedures developed by the judiciary.

6.80The Chief Justice’s submission in response to Issues Paper 21 stated that the judges see benefit in the approach for improvement of recusal procedures suggested by the Commission. The Senior Courts’ judges’ recent submission responding to Issues Paper 29 notes that the Heads of Bench have no objection to a requirement for publication of a recusal process for each bench, but have a preference for publication on the internet, rather than by Gazette notice.

6.81The Commission considers that in order to deal with potential conflicts of interest, there must be clear, robust, and well-publicised rules and processes for recusal. While there may be differences between the courts that justify slightly different procedural approaches being adopted by each bench, the processes should be based on a common set of principles, including the principle that the individual judge alone does not have the final say as to whether there is a conflict or not, and should incorporate the matters raised by Law Society set out above. Each court’s rules should also include clear procedures by which parties can challenge the refusal of a judge to recuse him or herself, and clarify the circumstances in which recusal would not be expected.

6.82While the judges should develop their own rules and processes in relation to recusal in order to ensure their workability and to reflect judicial independence, we consider they should be required to do so by statute.

6.83The statutory provision should also require the resulting rules and processes to be published on the internet, for example on the Courts of New Zealand website, and also published in the Gazette, to reflect their official status. We would encourage the judiciary to be pro-active in this regard.

6.84In the Commission’s view, making the suggested changes to the recusal process will be the most effective way to manage potential judicial conflicts of interests, and ensure public confidence in the judiciary remains high.

R23 There should be a statutory requirement for the Heads of Bench, in consultation with the Chief Justice, to develop clear rules and processes for recusal in their courts, based on a common set of principles developed by the judges.

R24These recusal rules and processes should be published in the Gazette and on the internet.

84Saxmere Company Limited v Wool Board Disestablishment Company Limited, above n 59.
85Towards a New Courts Act – A Register of Judges’ Pecuniary Interests? Review of the Judicature Act 1908 First Issues Paper, above n 61, at 5.
86“Guidelines for Judicial Conduct” Courts of New Zealand <www.courtsofnz.govt.nz>.
87R v Chatha [2008] NZCA 466 at [16].