September 29, 2010 9:00am by David Farrar

A win for Justice Wilson

Colin Carruthers, on behalf of Justice Wilson, has had a partial victory with the judicial review of of the decision of the Judicial Conduct Commissioner’s recommendation that a Judicial Conduct Panel be established.

Dean Knight blogs on what it means:

First, it’s very much a technical decision about how the Commissioner should have framed and referred the complaints for consideration for the Panel. In a nut-shell, the Commissioner was wrong to refer the whole bundle of complaints. He should have formed a view on each and every complaint and specified with some particularity which conduct warranted inquiry by the Panel. As a consequence, some complaints which were trifling were wrongly added into the mix; the main complaint – while sufficient for further investigation – was not framed carefully enough when it was referred; and complaints about the judge’s conduct between the two Supreme Court decision were referred without an opinion being specifically reached on whether they justified further investigation for the Panel.

This seems fair and reasonable. It means that the JCC must be very specific with which actions of Justice Wilson are thought to have been misconduct, rather than just refer the entire saga.

Secondly, on the marquee complaint that the Commissioner relied on to recommend a Panel be convened, the High Court is clear that the Commissioner’s vetting process was proper and consistent with the Act. The Commissioner properly appreciated the standard of conduct that, as a matter of constitutional law, justified removal of a judge from office and justified further investigation. The Commissioner also properly applied this standard when reviewing the factual allegations made. The Court said (at [91]):

“The important point is that the Commissioner considered that deliberate non-disclosure was a sufficiently plausible possibility to warrant further inquiry being made. We agree with the Commissioner’s conclusion that conduct of that type, if established, might warrant consideration of the removal of the Judge. We also accept Mr Goddard’s submission that in reaching that view the Commissioner formed the opinion that s 15(1) required of him.”

Justice Wilson did not win on this point, but it is worth stressing that the finding is that deliberate non-disclosure was a sufficiently plausible possibility to warrant removal. That does not mean that the panel will necessarily find it is – just that it could be.