The tale of the judge that went sailing with a QC that had just appeared before him, and the way it was handled, is almost enough to make you feel sorry for Jordan Williams, writes legal academic Marcelo Rodriguez Ferrere.
There is a scene in Pirates of the Caribbean: The Curse of the Black Pearl (the first film in what would become a seemingly endless and tortured franchise) that has always stuck with me. The captured Elizabeth Swann (played by Keira Knightley) complains to Captain Barbossa (played by Geoffrey Rush) that his apparent reneging on a deal was in breach of the Pirate Code. Barbossa wheels around on Elizabeth, and with a silver-toothed grin, snaps back: “The Code is more what you’d call guidelines than actual rules.”
The decision of the Supreme Court of New Zealand in Craig v Williams (the latest judgment in what is an actual endless and tortured defamation litigation battle between Colin Craig and Jordan Williams) reminded me of that scene, for both nautical and jurisprudential reasons. And when a decision from our highest court conjures up scenes from a film about pirates, it’s not a good sign.
The background to yesterday’s decision was the Supreme Court’s earlier decision, in April, to allow an appeal by Colin Craig and dismiss a cross-appeal by Jordan Williams. The effect of that decision was the ordering of a retrial of the original defamation action by Williams against Craig. Quite what New Zealand did to deserve this ouroboros of litigation – where the core question is not so much who should win, but rather whom we should despise more – is unclear. But the reason why this week’s decision raised more than a few eyebrows actually, and thankfully, has little to do with either Craig or Williams.
Instead, the decision focuses on the conduct of one of the judges on the Supreme Court, Justice Terence Arnold, and Craig’s lead counsel, Stephen Mills QC. Although the decision of the Court was issued on 11 April, it was heard all the way back in early September 2018. In between the hearing and the delivery of the judgment, Arnold and Mills went on a week-long sailing trip together with a third senior lawyer.
Before hoisting the mainsail, however, Mills thought it best to check in with Williams’ lawyer, Peter McKnight, and see whether Williams was OK with the trip going ahead. So, on 25 January 2019, inquiries were made of Williams. Apparently, while Williams “had some concerns of the proposal at face value” he offered no opposition to the sailing trip, and so, Arnold and Mills sailed, jibbed, tacked and gooseswung to their heart’s content for a week in February. (Full disclosure: the entirety of my sailing knowledge comes from the aforementioned Pirates of the Caribbean and the Beach Boys’ 1966 cover of “Sloop John B”).
As mentioned, the court then ruled against Williams and for Craig by a 3-2 majority, with Justice Arnold being one of the majority. Perhaps unsurprisingly, Williams then developed some latent regrets. He felt that he had been compelled not to object to the sailing trip. In fact, it breached the Guidelines for Judicial Conduct, and so the relationship between Arnold and Mills gave rise to apparent bias. Therefore, the court should “recall” its April decision against him and decide the matter again.
We should pause to note that Williams faced an uphill road in this argument. An application for recall is different to an appeal – which, given this the Supreme Court, simply wasn’t an option – and it requires a high threshold to be met. Essentially, the relevant test was whether there was “a very special reason” for the court to recall its judgment and, potentially, hold a new hearing.
But for those uninitiated readers, it might seem as though Williams had an obvious point and there was a very special reason to recall the judgment. There’s something a bit troubling about one of the judges deliberating on your case going on a week-long sailing trip with your opponent’s lawyer. While it is not out of the ordinary for judges to fraternise with lawyers – judges are invariably chosen from the legal profession, and long-standing friendships persist even when a lawyer is elevated to the bench – there are limits. The Guidelines for Judicial Conduct acknowledge as much:
“Social contact between members of the bench and bar is a long-standing tradition. Care should be taken to avoid direct social contact with practitioners who are engaged in current cases before the judge.”
In this case it doesn’t seem like very much care was taken at all.
The problem for Williams, however, was that if he had real concerns about the sailing trip, he should have raised them immediately. As Craig’s lawyer noted, “a party who is legally represented … cannot stand by until judgment and then, if those contents prove unpalatable, complain about the appearance of lack of partiality.” The implication was that Williams was having a bob each way: if the court had ruled in his favour, he would, of course, keep mum; it was only because he lost that he was now raising an objection.
And the Supreme Court basically declined Williams’ application on this basis. Not only did an apparently fully-informed Williams consent to the sailing trip going ahead, but the timing of his complaint meant that his concerns were “at best, technical”.
Which is, in my view, all a bit too convenient. While Williams’ approach meant that the recall application was justifiably declined, his conduct also gave the court an excuse to not examine the conduct of one of its own. Being able to point to Williams’ delay meant that the Supreme Court avoided having to address the substantive point: was Justice Arnold’s decision to go on a sailing trip with counsel in a case he was still deliberating on in breach of the Guidelines, and did it amount to apparent bias?
This is not the first time that the court has had to deal with these sorts of issues. In late 2009, the Supreme Court recalled a judgment after one of its judges, Justice Bill Wilson, failed to properly disclose the extent of the business relationship he had with Alan Galbraith QC, who was counsel for a party before him when he was hearing a case in the Court of Appeal. Facing investigation by a Judicial Conduct Panel, Justice Wilson resigned a year later. To be clear, I am most certainly not calling for Justice Arnold’s resignation, simply pointing out that he and his colleagues were all on notice about the dangers of extra-judicial relationships with counsel in cases before them. And to paraphrase Captain Barbossa, what is the point of the Judicial Conduct Guidelines if they aren’t actually even guidelines, as judges of the Supreme Court feel compliance with them is voluntary?
Because note what they say: “Care should be taken to avoid direct social contact with practitioners who are engaged in current cases before the judge.” Justice Arnold’s colleagues on the Supreme Court then effectively reinterpreted this to mean “when you are having direct and extended social contact with practitioners who are engaged in current cases before the judge, be a bit careful.” Which is not really the same thing at all, is it?
So, what should have happened here? Apparently, the sailing trip had been planned for some time (which raises a separate, as yet unanswered, question of whether Arnold J disclosed it to his colleagues before hearing Mills make his arguments at the trial in September 2018!). To which I say “tough ship-biscuits”. This is precisely why Williams had felt pressured to consent to the trip going ahead, and, although it pains me to say it, I feel a bit… sorry for him – *involuntary shudder*. Put yourself in Williams’ shoes for a moment. Would you say “no” to letting a judge have his jaunty voyage when said judge is deliberating on your case? Apparently, if Williams objected, it would have been Mills would simply have stayed ashore. But why run the risk of disappointing or angering the judge? It’s hardly fair.
The sailing trip was inappropriate. It should not have gone ahead. Was it the worst crime in the world? No. But frankly, Justice Arnold should have known better. And given this, the Supreme Court’s reluctance to call a spinnaker a spinnaker and state for the record that the this was an exercise of poor judgment from Justice Arnold is really quite troubling.
The court still could have declined Williams’ application because he ought to have raised the matter immediately, but it missed the opportunity to show that it was holding itself – and its judges – to a higher standard. As it stands, it looks like the court is protecting its own through technicalities, and what’s more, for the dripping-with-privilege reason of a sailing trip. Wilson’s infraction ten years ago involved the owning of a thoroughbred horse stud. Legal pundits are now predicting that in another 10 years, some Supreme Court judge will be caught up in a scandal involving polo and caviar.
This was, incidentally, the first decision of the new-look Supreme Court, including our new chief justice from humble beginnings, our first Māori judge to serve on the Supreme Court, and a bench that remains three-fifths women. Not the best maiden voyage.
The Bulletin is The Spinoff’s acclaimed daily digest of New Zealand’s most important stories, delivered directly to your inbox each morning.