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Judicial “Issues” & Extra Judicial Conduct Of Judges
Complaints and Processes – Common Issues
If you are concerned a particular judges conduct towards you is unfair. . . you are not alone.
It is PARAMOUNT to understand the difference between the “decision” and the conduct of the judge who has issued the decision: This is fundamentally the basis of the ineffectiveness of the Judicial Conduct Commissioner- who exist for the public to believe there are any regulations in place for Judges Conduct.
2 things must happen regarding a judges conduct/ decision to avoid predictable obstructions of the JCC “process”:
a) A formal written complaint to the JCC : [email protected]
https://jcc.govt.nz/complaintprocess.html
b) The decision must be appealed (20 days) OR judicially reviewed to separate the ACTUAL role for the JCC to address the CONDUCT of the judge and NOT the decision.
Recusal application
Customise the recusal to the court: for instance Family Court/ District Court:
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Includes:
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Application citing legislation
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Affidavit in Support
Judicial Conduct Commissioner
Everything you need to file a formal complaint against the judges conduct
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Includes:
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Complaint form
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Communication and examples of misconduct
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Reference to the legislation to bind the JCC
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Relief/ Remedy you seek for resolution of complaint
Appeal of Dismissed Recusal
Expect to be stone walled. A recusal is not to embarrass a judge, it is to protect the reputation of the judicial system.
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Includes:
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An Appeal to High Court
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Affidavit in support including recusal application and decision
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Fee waiver for Appeal
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YOU HAVE AN AUTOMATIC RIGHT OF APPEAL [2023] NZCA 502 18 Oct 2023- Katz J
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Private Prosecution of a Judicial Officer
Judges are only “immune from suit” when acting within jurisdiction. If a Judge has exceeded jurisdiction and committed a criminal offence they should be charged.
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Includes:
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Charging documents (1 per offence)
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Summary Of Facts
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Witness statement
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Filing Fee $33, per charge (filed online- originals delivered to court)
Some interesting cases regarding judges accountability for “mistakes” / errors of law versus abuse of power:
Case Law of Judges being personally held to Account for unlawful contempt:
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020
CASE LAW OF RECUSALS IN NEW ZEALAND
a) Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009]
NZSC 72, [2010] 1 NZLR 35; Saxmere Company Ltd v Wool Board
Disestablishment Company Ltd (No 2) [2009] NZSC 122.
b) [2010] 1 NZLR 76; Ebner v Official Trustee in Bankruptcy [2000] HCA 63,
(2000) 205 CLR 337; and Aussie Airlines Pty Ltd v Australian Airlines Pty
Ltd (1996) 135 ALR 753. See also: Grant Hammond, Judicial Recusal Principles,
Process and Problems (Hart Publishing, Oxford and Portland Oregon,
2009). See Slavich v Attorney-General [2013] NZSC 130 at [6].
PONSONBY RECUSAL CASE LAW:
a) Recusal of Judge Sinclair dated 27 February 2023 on the basis of conflict of interest with Emma Gibbs being a police prosecutor, and married to Auckland based Judge Tony Fitzgerald- substantiating an admission ANY Auckland based judge would have the same grounds of conflict of interest for recusal.
b) Recusal of New Plymouth Court judges by his honour Judge Hikaka ”to avoid perceived conflict of interest 5 May 2023 : “Not appropriate for me to deal with this matter. First, I know Mr Clark from my time in Manukau, and second, obviously, I know Ms Grigg. It would be better for decisions to be made elsewhere. That way any suggestion of potential for perceived bias is avoided.”
c) Judge Bergsengs recusal 21 April 2023 “Ms D has previously sought that I recuse myself given my involvement in earlier decisions where she has sought to commence a private prosecution and accordingly this should be referred to another Judge.”
d) Judge Kelly: 19 June 2023 “has recused himself on this matter given that you had previously sought to appeal a decision of Judge K Kelly in which you were the Plaintiff – see SC 29/2023, CIV-2021-092-001563″
JUDGE MAHONS DECISION: IN CLOSED COURT DISREGARDING RECUSAL GUIDELINES / UNDER APPEAL
[2023] NZFC 6804
D V N
27 June 2023: “[9] I dismiss the application for recusal and the reasons for this decision will be set out in a further judgment.”
Judge Mahon released a decision titled: “Oral Judgement” dated 27 June 2023 on 29 June 2023 declining to recuse himself- no reasons given.
No oral judgement was issued at the recusal hearing- this was a reserved judgement- apparently documented the same day as the hearing. [Held in private with a member of the public directed to leave on Judge Mahons instruction- in no way transparent.]
Judge Mahons propensity to disregard court rules and legislation is not an isolated case:
FAM-2018-055-000169 [2021] NZFC 3952 : 3 May 2021
Mason v Stankic [2021] NZFC 3952
Published 11 October 2022
“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role.“
~ Chief Justice Roberts
