Yesterday’s Supreme Court direction for a Court of Appeal rehearing of  the Saxmere case SC 64/2007 is a victory for Sue Grey and a serious embarassment for the New Zealand Courts.  But we may be thankful in the end that this serious embarassment has occurred relatively early in the life of this unfortunate court.

Sue Grey courageously persisted in her argument that Bill Wilson J should have recused himself because of the risk of an apparent bias toward the side argued before him by his friend and business associate Alan Galbraith QC. Her argument was rejected at several levels but accepted after the Supreme Court reconsidered things when Wilson revealed that he was effectively carrrying financing costs for some of their joint investment, that would fall to Galbraith’s account in certain circumstances.

I do not know Wilson J well, but I doubt that his tardy and progressive disclosure of his financial relationship with Galbraith QC had more to it than irritation at the idea that his judgment would be biased by the relationship, and a view that the argument was opportunistic. However his authority will take some time to recover after the reluctant disclosure has led the Court into an embarassing reversal.

The upside for the rest of us is that it may lead to changes to address the worst risks created by Margaret Wilson’s pig-headed refusal to  improve her Bill that ended our access to the Privy Council in London. In her determination to complete the "de-colonisation" of  New Zealand, she dismissed submissions (and my arguments) pointing out the glaringly obvious risk –  cases where there would not be enough judges without worrying links or previous connections to constitute a patently neutral court.

NBR has followed this case closely. They sought my opinion on a curious provision recommended by my Select Committee which required the Chief Justice’s consent to a judge holding "office" other than that of judge. It made me think. 

Anxious outsiders could develop resistant suspicions of bias should I appear as lawyer before one of our higher courts. I think I have five former partners among judges who sit at senior levels. Others are friends. One is a co-investor in a forestry investment partnership with me. I do not believe that any of those judges would corruptly prefer me or my clients because of those relationships.

They might be more inclined to trust me, because they would know from experience that I do not lie, but that would be of less significance than their confidence in counsel they see frequently.  But there are highly charged cases where suspicions could be unassuageable. For example in our little pool there would be few senior counsel who have not appeared for or against a bank, or the government. How does one satisfy lay critics in a case involving the interests of banks or the government that such connections do not lead to long term preferences? The best reassurance in sport and the law, that local loyalties will not be influential,  is by using international referees.

New Zealand’s pool of good judges is too small to avoid such risks. But we had the incredible inheritance of free access to neutral judges in the jurisdiction of choice for people free to choose where to get the world’s best judging.

Until Clark and Wilson and their sycophants chose to dump it.

They lied about the advantages. Even then we could see that it would cost at least $8m per year, compared with next to nothing. And that was before the decision to spend $60m+ (I can’t bear to look up the latest figures) on the "mosque in a maimai" home for the new Court nearing completion on Lambton Quay.

Some urged that the court have more judges, so that there would be more chance of putting together a panel of five without awkwardness.

Others urged that provision be made to co-opt Australian judges or other judges from high quality jurisdictions. Ms Wilson and other abolition supporters described those proposals as evidence of our colonial cringe and lack of patriotic pride.

I think the real reason for their resistance was fear that it would attract more attention to the costs, and that attempts to set up reciprocal arrangements for the exchange of judges might result in unwanted assessments of the relative depth of talent in our judicial pool.

Whatever the case, Attorney General Chris Finlayson now has good reason to re-open the topic.

I predict prompt approaches to Australia, to discuss getting temporary appointments of top Australian judges when too may of ours are conflicted out. Better still might be arrangements to allow cases to be shifted and heard entirely by a patently independent court whenever circumstances make it hard to be sure  of no local bias, or perhaps where the parties agree that international refs would be better.

Let the people choose and may the best courts win.