A Shameful Episode - The ruin of Justice Bill Wilson - Part 4

Tuesday, 18 July 2023

In this unprecedented look into the highest echelons of the New Zealand judiciary, reporter Martin van Beynen investigates the complex saga of Justice Bill Wilson’s downfall.

The story so far: In early 2007 highly regarded Wellington Queens Counsel Bill Wilson was appointed to the Court of Appeal and then in February the next year to the Supreme Court.

He had reached the pinnacle of an outstanding legal career. He could have expected a distinguished spell in New Zealand’s highest court and a knighthood.

While he was on the Court of Appeal he heard a case in which his friend and business partner Alan Galbraith acted for one of the parties. The other party, a wool company called Saxmere, headed by North Canterbury farmer Peter Radford, was made aware of the connection but not its full scale. Radford lost the appeal and started looking more closely at the Wilson/Galbraith connection.

They gathered information which they believed showed Wilson could appear biased and they filed in the Supreme Court for a new trial. Wilson had to make a statement to his own court.

The Supreme Court, after ruling Wilson was in no way obliged to Galbraith, received more information and decided to withdraw the decision. It granted Radford a new trial. Three complaints were then made about Wilson’s conduct to the Judicial Conduct Commissioner and stories appeared in the media. The commissioner recommended a Judicial Conduct Panel be set up to investigate the allegations. [Read Part 1 here, and Part 2 here and Part 3 here.]

Don’t let Bill go

Acting Attorney-General Judith Collins was told an inquiry, which had to assess whether the alleged misconduct was serious enough for Parliament to consider Wilson’s removal, would be a waste of time.

In his letter to Collins, Jim Farmer said that on any view of it -”apart from that of Sir Edmund [Thomas]“ - there could surely be no case for Wilson’s removal.

A panel inquiry, Farmer wrote, would end up with more “media sensationalism” but with no prospect of the Judge being removed from office for misbehaviour. It could also end in Wilson’s immediate resignation, he wrote.

“Either outcome will exacerbate the damage to the Court’s reputation caused so far by the extravagant claims by Sir Edmund Thomas, claims that have in substance been rejected by the Commissioner based on the direct personal testimony received by him from the only people who were directly involved in the events in question.”

Farmer said he believed Wilson had been the victim of a real injustice because of the reporting of Sir Edmund’s complaint “as if they were established facts”.

“I also believe the establishment of a Panel will inevitably lead to the loss of a Judge of high standing, not because he deserves to go but simply because his position, and that of the Court on which he sits, will become intolerable.”

Auckland lawyer Stuart Grieve, QC wrote to the minister on behalf of himself and nine other Queen’s Counsel.

The letter said the facts, even on their worst connotation, went nowhere near warranting removal from office.

Media coverage of Sir Edmund’s complaint had unfairly prejudiced the public perception of Justice Wilson, the letter said.

Conduct in issue

In the middle of May 2010, another important letter arrived on Collins’ desk.

It was from QCs Mary Scholtens and Stephen Kós.

They pointed out that the conduct at issue was the reply Wilson had made to affidavits from Radford in his first written statement to the Supreme Court.

The statement barely touched on the claimed disparity of contributions to the company so the reply could not be misleading on that score, their letter said.

“The only complaint can be that the statement was not more forthcoming in that particular respect. But… it expressly invited either party or the court to answer questions on the statement. But none did. The making of that invitation is entirely contrary to any finding of intent to deceive, which would be the least threshold for a finding of misbehaviour.”

No possible basis for saying Wilson “lacked the integrity to continue to hold judicial office” existed, the lawyers said.

“We urge that you grasp the nettle now and bring this distressing and distracting sideshow to an end. It has been pursued for private and political ends, regardless of realities. Worse, those who have pursued it have known that the Judge could not speak for himself and that nor could the Attorney -General, the conventional champion of the judiciary, on this occasion do so. The consequent vacuum and campaign of disinformation has been distressing to observe.”

Colin Carruthers and Geoff Harley also set to work to convince Collins to stop the process and put the matter to bed.

In a 16-page submission they argued that if Sir David [Gascoigne] had directed himself correctly in law, he would have had no choice but to find Wilson’s conduct, even on its worst interpretation, as not possibly serious enough to warrant removal.

“The standard for misbehaviour is and historically always has been high for removal, because of the danger of malicious or mischievous complaints undermining the independence of the judiciary,” their submissions said.

“The judge’s offer to be cross-examined provided the safeguard that his disclosure was adequate. The failure of both parties and of the Court to take up that offer should not now lead to his removal from office.”

Carruthers and Harley said the commissioner’s finding that Wilson acted in good faith left him no room to say the behaviour, if established, was serious enough to warrant a further public inquiry.

“The acceptance by the Commissioner of good faith - indisputably correct on the facts - is the antithesis of misbehaviour. For the reasons given by the Supreme Court, the Judge’s view has been held to be incorrect. This does not warrant any sanction, let alone the ultimate sanction.

“No Judge should be hounded from office in the way Sir Edmund has attempted by way of his complaints. There is a process prescribed under the Act by Parliament, which has been abused. It is submitted that the Attorney has the duty to identify that abuse and to stop it now.”

‘Abysmal failure’

However the submissions from so many legal heavyweights did not dissuade Collins from appointing a Judicial Conduct Panel on May 31, 2010.

“She failed abysmally in her duty,” says Harley.

The panel was Court of Appeal judge Tony Randerson, Chief High Court judge Helen Winkelmann (now Chief Justice) and Chief Ombudsman Beverley Wakem.

Before the panel, which met for the first time on July 6, 2010, got under way, Wilson applied to the High Court to have Sir David’s recommendation invalidated.

To have any chance of salvaging his career as a Supreme Court judge, he needed the High Court to state in categorical terms that his conduct was essentially a lapse of judgment and nowhere near sufficient to warrant removal for misbehaviour.

The High Court needed to set the standard for misbehaviour that would warrant removal and explain why his conduct was well short of the threshold.

“I’ve always said we would have succeeded before the panel in the sense they would have found that he should not be removed from office,” Carruthers says.

“What I discussed with Bill was that he needed to challenge Gascoigne’s decision and avoid the panel process because otherwise every newspaper article, radio broadcast would be referring to him forever as the only judge who’d ever gone before a panel.”

Harley says he and Carruthers trawled through every case they could find in overseas jurisdictions where judges had been removed from office and in New Zealand where judges had misbehaved.

“In every case overseas the judge had done something wicked like taking bribes and interfering with the prosecution case in a murder trial. Their behaviour had been terrible. There was just no comparison with the allegations against Bill, even on the worst interpretation.”

The quashing of the commissioner’s decision would not be enough.

“I wanted the High Court to replace Sir David’s findings with its own decision saying the matter should go to the Chief Justice to be resolved in house,” Wilson says.

High stakes

The Dominion Post headlined its editorial on Wilson’s High Court bid: “Judge plays for high stakes in court move”.

Carruthers remembers doing a radio interview at the time with Sean Plunket, then with RNZ, who asked him if he was calling Sir Edmund a liar.

“As Jim Farmer remarked ‘there was a very long pause before you answered that question’. I remember saying ‘I’m not saying that but he does not understand the facts and he is misrepresenting the facts in his correspondence with the commissioner’.

“I made a point of saying this is having a huge impact (on Wilson) and it was utterly unjustifiable because the Supreme Court simply hasn’t understood a relatively simple commercial concept.”

One of the Supreme Court judges complained to the Chief Justice about the interview.

The hearing got under way before Justices John Wild, Forrie Miller and Graham Lang on September 1, 2010.

Justice Miller was the judge who had heard the Saxmere case in the High Court and was overturned on the appeal Wilson heard.

“At the start of the hearing, Colin told the court that if the facts as found by the commissioner could justify my removal for misbehaviour I would not wish to remain in office. But I thought there was no way the facts could justify that,” Wilson says.

The commissioner’s lawyer, David Goddard, QC (now a Court of Appeal judge) told the court public confidence in the judicial system could be damaged if the High Court overturned Sir David’s decision.

“This legislation is not about reassuring Wellington insiders like counsel in this case. It’s about providing broad public reassurance.”

The argument presented for the commissioner was that it was open for the judicial conduct panel to find Wilson knowingly made an inadequate statement to his own court, deliberately seeking to mislead it.

“The commissioner, of course, had made no such finding in his decision – this was an entirely new assertion, made up for the court hearing,” Harley says.

Although lawyers for Sir David and the Acting Attorney-General took an aggressive approach - unnecessary and inappropriate according to Carruthers - Wilson was hopeful.

Justice Wild, for instance, told the commissioner’s counsel during the hearing he could see a “huge quantum leap” between a case where a judge had been removed and “on its darkest view what occurred here”.

“Wild also said because of the publicity, it would not be practicable for me to continue in office after a panel hearing, whatever it decided,” Wilson says.

In a decision delivered on September 28, 2010, the High Court essentially sealed Wilson’s fate.

Coup de grâce

It said the standard of misbehaviour used by Sir David - conduct that fell so far short of accepted standards of judicial behaviour as to warrant the ultimate sanction of removal - was in line with overseas authorities and sufficient for his purposes.

But Sir David had made a number of mistakes in the way he had evaluated the complaints which warranted quashing the decision.

The more important part for Wilson was the relief provided by the court.

As mentioned Wilson needed the court to end the whole saga with a ruling that there was no way his conduct was serious enough to warrant removal and therefore a panel could not be justified.

Wilson had lost all confidence in the commissioner, given the aggressive approach taken in court to defend his report, and didn’t want the decision going back to him.

However, the High Court said the lack of confidence in Sir David was unfounded.

“Although the commissioner’s decision is incomplete, it is a careful, thoughtful and sensitive piece of work.”

The court set aside Sir David’s decision and also Judith Collins’ July decision accepting the commissioner’s recommendation.

But crucially the judges sent the matter back to Sir David so he could rewrite his decision.

High Court ‘errors’

Wilson thinks the High Court decision contains a number of errors.

“For a start the court seemed to think the publicity given to false allegations against me was irrelevant. Because of the damage that publicity did to my reputation I couldn’t stay in office unless the full court fully backed my position.”

He believes Sir David changed his position in the High Court proceeding.

The commissioner had accepted he had acted in good faith but in submissions to the court his lawyer, David Goddard, supported by Solicitor-General David Collins, QC, for Judith Collins, made submissions that a panel could find Wilson knew there was a real risk the Supreme Court would not fully appreciate the scale of the connection to Galbraith.

“In other words they were alleging I was trying to hide something. Would I have made myself available for questioning if I was trying to conceal information?” Wilson says.

“What was worse was that the full court cast an aspersion on my integrity by speculating a panel might conclude that I had for my own purposes deliberately withheld relevant information over the objection of advisers.

“There was no evidence at all that I had concealed information. It also flew in the face of the commissioner’s finding that I acted in good faith.

“The court’s approach would mean every serious complaint would have to go to a panel because even if the commissioner accepted the Judge’s explanation, the panel might not.”

Wilson cannot understand why the court rejected his argument that the commissioner had unlawfully relied on information supplied by Sir Edmund.

“The court said Dr Farmer had asked the commissioner not to give credit to Thomas’ information but hadn’t told him he wasn’t entitled to take the information into account. So the commissioner is told to disregard the information but the court seems to be saying the commissioner could still take it into account.”

Harley says it wasn’t the function of the court to send it back and let the commissioner have another crack. The court even offered what was essentially a do-it-yourself guide to how the commissioner should rewrite his report, to provide for the prospect that Wilson had deliberately withheld relevant information from his own court. A court can’t do that.”

Options narrowing

Wilson says he could have appealed the part of the court’s decision sending the matter back to the commissioner.

“But I could see the commissioner coming out with a new finding he was concerned about my frankness. And you can imagine the news.”

He decided against an appeal partly because the delay would mean he would be on gardening leave at a cost to the taxpayer while everyone waited for his appeal to be heard and resolved.

“It also didn’t seem right to ask judges of the Court of Appeal, all of whom I knew and most of them former colleagues of mine, to decide an appeal by me.

“The way my case was dealt with over such a long time, it made me feel that no matter what the outcome, I wouldn’t have been able to continue on the bench. If the process ended with a finding my conduct did not warrant removal I would have had to resign anyway. No judge, let alone a Supreme Court judge could have gone through that and still be able to sit.

“I was left with only one responsible course. To resign.”

The resignation was announced on October 21. Wilson had, through Carruthers, offered to quit two weeks before, provided his terms were met.

Judith Collins rejected the sum Wilson suggested and offered him a deal where he received one year’s salary ($410,000) and a sum of $475,000 to cover his legal costs.

He accepted. She described it as the “best outcome”, a phrase that Wilson still finds outrageous.

Carruthers felt the resignation was the best course.

“That’s a decision I’ve gone over and over in my mind ever since and have discussed it countless times with Bill, who insists he was perfectly happy with the position reached for the reasons mentioned.”

Radford, however, was angry at the news of the resignation on two fronts. He had wanted the full inquiry that the commissioner had recommended and found the payments to Wilson, when he had received nothing, galling.

Grey felt sad for Wilson but thought the resignation robbed the country of an opportunity to “look into all these matters so they wouldn’t happen again”.

The case had also been at a high personal cost to her.

“I’d been fired from a job I loved doing because I’d been alleged to have a conflict of interest. I was the main income earner for myself and my three children. I went from being told I had every prospect of being promoted right up through the ranks to almost overnight being fired.

“I was 100% fired because my client filed proceedings in the Supreme Court challenging the judge. Those orders came from the highest levels in Wellington. I’d always had what was considered an immaculate CV … people made jobs for me and all of a sudden I couldn’t get an interview.

“I never regretted standing up for my client. The consequences that come with it have certainly added to the interests of my career and probably what I’m doing now.

“It could have been handled better so that it didn’t have such a big fallout for people. It was really sad. That’s the biggest thing.”

Back to the bar

Wilson received a number of letters commiserating with him and agreeing he had been unfairly treated.

Many were critical of Sir Edmund. One lawyer, now a judge, wrote to Wilson saying: “Ted’s conduct has cost him life-long friendships and alienated him from so much he holds dear … he now represents a sad and isolated figure.”

Another prominent lawyer, also now a judge, wrote: “You’re a good man traduced, and deserved none of what you’ve had to endure…the fulcrum of this whole affair was the bone-headed error of the Court in Saxmere 2. Debt? Ye Gods. Either sheer stupidity or shades of Salem… Welcome back to the bar. We embrace your return.”

Wilson remained busy with arbitrations and analysing cases for a litigation funding company, of which he became a director.

He also chaired an inquiry into domestic violence funded by wealthy businessman Sir Owen Glenn.

He was credited with establishing order in the inquiry after a chaotic period marked by resignations and disharmony. His final report proposed a “one family, one judge” Family Violence Court, a new agency to implement a long-term national family violence strategy and a centralised database to screen and manage high-risk cases.

Through boxing enthusiast Sir Bob Jones, he also took up a role as heavyweight boxer Joseph Parker’s adviser on contracts and intellectual property. He also acted as a mentor for Parker’s older sister Elizabeth, then a law student.

Lifting the cloud

Whether Saxmere Company continued to flourish after the saga with Bill Wilson is a closely guarded secret. Radford won’t be drawn on it.

Wilson appreciates the point that given his health problems he now has more important things to worry about than his reputation.

“But my name is very important to me and unfortunately there is this very serious reflection on my name which I want to clear. The whole thing left me disillusioned.”

For his friends, the case is still troubling.

Harley says he doesn’t normally keep historical files but the Wilson files still sit in boxes in his office.

“I always regarded it as very unfortunate and unfinished business.”

The case also still rankles Carruthers who believes Wilson never recovered from the Saxmere saga. “It was the ruin of a very good judge.”

Full circle

In June 2010, the Court of Appeal sat to rehear the Saxmere/Wool Board appeals which had started the whole saga.

Radford and Grey finally had their day in court with judges whom they were comfortable would be indisputably impartial.

The Court of Appeal delivered its decision on November 17, 2010, by which time Wilson had resigned.

Ironically the result was the same as the previous Court of Appeal’s decision on the matter. The court again said the High Court had been wrong to rule in favour of Saxmere against the Wool Board.

It was a good result for the Wool Board and sheep farmers but the damage done to get there left Bill Wilson looking at the ashes of his judicial career.