Gate-crashing judge challenges disciplinary process
Tuesday, 18 February 2025
Gate-crashing judge Ema Aitken is challenging a recommendation that she be investigated over her behaviour at a Christmas party, and has won a reprieve from the court to hear her challenge before any investigations begin.
The Post revealed the district court judge apologised after she and her husband David Galler gatecrashed a private New Zealand First fundraiser, with an independent report into the incident later saying she “verbally attacked” members of the party, including deputy prime minister Winston Peters.
Last month a judicial watchdog recommended Attorney-General Judith Collins appoint a panel to investigate complaints against Aitken. Collins delegated Justice Minister Paul Goldsmith to make the decision as she was one of the complainants.
But Aitken has challenged the recommendation from Judicial Conduct Commissioner Alan Ritchie and wants a judicial review.
She sought an order that no decision is made, and no panel appointed, until the High Court determined her application for a judicial review - which was granted by Justice Andru Isac on Monday.
Aitken sought the judicial review on the grounds that the claims against her were not clear enough.
According to Justice Isac’s judgment, in her application Aitken’s lawyer, Paul Rishworth KC, said Aitken faced “a broad and unfocussed range of allegations”, which left her unable to properly respond.
The interim order was needed because appointing a panel to investigate without giving Aitken fair opportunity to respond properly to claims against her could have her unfairly removed from her role on the bench, Rishworth said.
According to the judgment, a lawyer for the acting-Attorney General said, like all judges, Aitken “enjoys security of tenure”, with no risk to her position should the investigation panel be appointed.
Justice Isac granted the application but said it was inappropriate for the court to actually tell the acting Attorney General what to do.
The Judicial Conduct Commissioner Alan Ritchie launched a “preliminary examination” in December, after Aitken and her partner, celebrity doctor David Galler, apologised over the fracas.
Aitken and Galler, an intensive care specialist and star of TV programme Middlemore, were attending a judges’ end-of-year function at Auckland’s Northern Club, when they overheard Peters making a speech at an event being held in a different suite.
In an incident report compiled by a barrister for NZ First and the private members’ club, it was alleged Aitken tried to enter the room and shouted: “He’s lying! How can you let him say that?”
Galler was also accused of blocking Peters’ exit as he left the event, and saying: “You’re doing a shit job in government,” and “verbally attacking” minister Casey Costello and party secretary Holly Howard.
It’s also alleged Galler asked a staff member, of Indian heritage: “Since when did we start allowing Indians to enter this club?”
In a statement to The Post at the time, Galler said it was a “totally false assertion that comments I made that evening were racist or intended to be racist. I unequivocally reject any suggestion to that effect”.
Galler apologised to the club. Aitken and Chief Judge Heemi Taumaunu, on behalf of the court, also apologised to NZ First.
In her letter to the party, Aitken said her comments were “rude, uncalled for and inappropriate” but claimed she was unaware Peters was speaking.
“My intrusion would have been inappropriate at any event, but at an event such as this, it is all the more regrettable,” she wrote.
A video clip from the party also shows prominent barrister, Michael Reed KC, refusing to stop taking photographs of NZ First guests, including Shane Jones’ wife Dot, despite strict club rules.
Judith Collins previously said she was “really disgusted” at the “very serious” behaviour, which took place on November 22. She, and a member of the public, complained to Ritchie.
Ritchie had already initiated a “preliminary examination” and last month recommended Collins appoint a panel to investigate Aitken.
Anyone can complain about a judge, but complaints must be about conduct rather than the legality of a decision.
A panel would be drawn from the ranks of judges or retired judges, although one can be a senior lawyer. Another must be a layperson.
The panel has the same powers as a commission of inquiry and hearings can be held in public.
It then reports back to the attorney-general with its findings and an opinion on removal. As acting AG, Goldsmith must then decide whether to agree or disagree with the recommendation.