Marie Were 1

Illegality:
Irrationality/Unreasonableness:
Procedural impropriety/unfairness:
 Broadly speaking this covers all questions relating to the
manner in which a decision is reached
 Natural Justice
 Rule against bias

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 Nemo judex in causa sua – no one may judge his or her own
case … The rule requires general impartiality in decision-
making for doing justice between parties and for
maintaining public confidence in the administration of
justice.
 … justice should not only be done, but should manifestly
and undoubtedly be seen to be done.
 R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 per
Lord Hewart CJ
 Joseph, Constitutional and Administrative Law in New
Zealand
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 Stereotypes from media (you tend to group people
together)
 From personal experience
 From the experience of people around you
 Observations
 Assumptions

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Judicial Most Least Low Level
Ministers Demanding Demanding Administrative
Bodies

Varies with the facts

and legal
circumstances of the
case
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• Reflects the standards and expectations of the
reasonable person

• Independence and impartiality

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 Presumptive bias
 Arises where a decision-maker has a direct pecuniary or
personal interest in the outcome of the case
 Apparent bias
 Is where the decision-maker has some personal or
professional relationship to a party or witness, or a
prejudice against or preference towards a particular
result, or a predisposition leading to a predetermination
of the issues
 Joseph, Constitutional and Administrative Law in New
Zealand
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 Direct pecuniary interest
 It is said that if a decision-maker has a direct pecuniary
interest, or an interest capable of a monetary value, then
the law raises an irrebuttable (i.e., automatic)
presumption of disqualification

 Where an irrebuttable presumption of disqualification

arises the decision-maker should recuse him or herself
(i.e., step down & let someone else make the decision)
 Joseph, Constitutional and Administrative Law in New
Zealand
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 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142
 Background facts
 Auckland Casino was unsuccessful applicant for casino licence
(Railway Station)
 Two members of Casino Control Authority held shares in Brierley
Investments (80% owner of Sky Tower) sold before 49day
hearing concluded
 Authority chairperson was partner in law firm that acted for (a)
council in land swap for alternative (Sky Tower) casino site, (b)
Fletcher Construction who were contracted to build Sky Tower &
(c) Brierley Investments
 Auckland Casino knew facts before hearing but chose not to
object – it let the hearing continue without protest – “bias had
been waived”
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Direct pecuniary interest
 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR
142
 The pecuniary interest rule applies as fully to an
administrative authority when acting judicially as to a court of
law
 The courts may pierce the corporate veil for assessing
shareholdings in parent companies or subsidiary companies
 The pecuniary interest rule must be read subject to the de
minimis rule
 A decision-maker must know of the pecuniary interest in the
inquiry in order to be disqualified
 The disposal of an interest immediately prior to the making of
a decision may not negate an allegation of bias
 No proof of actual bias is required
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 Direct pecuniary interest
 Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 at
148 per Cooke P
 The authorities had routinely affirmed that a direct pecuniary
interest, no matter how small, would automatically disqualify. The
Court of Appeal thought the words “however small” an
exaggeration and that the courts should discount minor financial
interests that could not sensibly exert improper influence. In
Auckland Casino, a shareholding representing roughly $1,000 was
considered insufficient to disqualify a member of the authority.
Furthermore, it was necessary to establish that a decision-maker
knew of the personal interest since one could not be influenced by
that of “which he knew nothing”.
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 Background facts
 President and military dictator of Chile (1973-1990) following 1973
coup
 Falklands war 1982 Chile shared military intelligence with UK
 Pinochet accused of human rights violations: murder, torture &
kidnapping
 Spanish judge claimed “universal jurisdiction” and issued arrest
warrant on afternoon of 16 October 1998 for crimes of genocide
and terrorism
 Similar warrants also issued by judges from Belgium, France &
Switzerland
 English magistrate signed provisional arrest warrant at 9pm on 16
October 1998 alleging that Pinochet murdered Spanish citizens in
Chile during 1973-1983 12
 Con’t
 Pinochet was in London for medical treatment in 1998 and was arrested by
Metropolitan Police at midnight on 16 October 1998 at the London Clinic and put
under house arrest
 Judicial review of extradition proceedings
 R v Evans, ex parte Pinochet Ugarte (Queens Bench Division, 28 October 1998)
Lord Bingham CJ, Collins & Richards JJ upheld action for judicial review &
habeas corpus finding that Pinochet was entitled to sovereign immunity as a
former head of state and could not be prosecuted or extradited unless Chile
waived immunity [Hatch v Baez (1876) 7 Hun 596 applied]
 R v Bow Street Stipendiary Magistrate, ex parte Pinochet Ugarte (No 1) [1998] 3
WLR 1456 Lords Slynn, Lloyd, Nicholls, Steyn, & Hoffmann
 Majority 3-2 (Nicholls, Steyn, & Hoffmann) held Pinochet not entitled to claim
sovereign immunity based (inter alia) on Torture Convention 1984
 Hoffmann “agreed” with Nicholls & Steyn
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Lord Hoffmann
My Lords,
I have had the advantage of
reading in draft the speech of my
noble and learned friend Lord
Nicholls of Birkenhead and for the
reasons he gives I too would allow
this appeal.

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 Augusto Pinochet
 BBC: Nail-biter in the Lords [25/11/98]
 The Lords await five minutes of high drama

 The decision to permit extradition procedures to

be started against former Chilean leader General
Pinochet could not have been delivered in a more
dramatic fashion.
 Five Law Lords gave their verdicts in turn, but the
order in which the split decision was given meant
that supporters of the 83-year-old may have been
celebrating prematurely.
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 Non-pecuniary interest
 R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet (No 2)
[2000] 1 AC 119
 Presumptive bias may cover a direct non-pecuniary interest in the
outcome of the case
 Pinochet claimed sovereign immunity against prosecution for war
crimes
 Amnesty International was an intervener in the No 1 appeal in HL
 Lord Hoffman failed to disclose that he had close links with the
organization, as a director and chairperson of a charity that was wholly
controlled by Amnesty International
 He was held to be “judge in his own cause” and was automatically
disqualified
 Decision given 15 January 1999

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R v Bow Street Metropolitan Stipendiary Magistrate, Ex p
Pinochet (No 2) [2000] 1 AC 119
 Established three limbs of presumptive bias
1. Having a direct pecuniary interest

2. Being nominally a party to the case

3. Having a non-pecuniary interest through

association with a party to the case

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 Pinochet No 3 [2000] AC 147: could only be extradited for
torture charges after 1988 when UK, Chile & Spain ratified
international agreement making torture an offence wherever
it may have occurred worldwide
 Majority decision 6-1 that Pinochet did not have sovereign
immunity regarding those charges and could be extradited
to Spain to stand trial
 Lord Browne-Wilkinson (at 205) held that otherwise “one of
the main objectives of the Torture Convention – to provide a
system under which there is no safe haven for torturers –
will have been frustrated.”
 Decision given 24 March 1999
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 Margaret Thatcher (former PM) stands by Pinochet: he was the UK’s
staunch, true friend (October 1999)
 Home Secretary (January 2000) ruled that Pinochet should not be
extradited due to ill health but withheld medical records
 R v Secretary of State for the Home Department, ex parte The Kingdom
of Belgium (Divisional Court, Queens Bench, 15 February 2000)
Simon Brown LJ, Latham & Dyson JJ
 Upheld application for review by Belgium of Home Secretary’s
decision to withhold medical records
 Pinochet returned to Chile (March 2000) but flight delayed on the
runway to allow Armada silver gift from Margaret Thatcher to be
delivered
 Later charged for tax evasion and passport fraud but died (December
2006) before conviction
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Is] where the decision-maker has some personal or
professional relationship [Saxmere] to a party or witness,
or a prejudice against or preference towards a particular
result, or a predisposition leading to a predetermination of
the issue(s)

Joseph, Constitutional and Administrative Law in New Zealand

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 The parties may waive their rights to object where a
decision-maker discloses an interest at the
commencement of the hearing

 To waive its protection, the party must act “freely

and in full knowledge of the facts”

Joseph, Constitutional and Administrative Law in New Zealand

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 Saxmere v Wool Board Disestablishment Company Ltd (No
2) [2010] 1 NZLR 76
 Justice Wilson
 Saxmere v Wool Board Disestablishment Company Ltd (No 1) [2010] 1 NZLR 35
 Business relationship with opposing counsel disclosed by phone
 No apparent bias: merely a passive investment
 A judge should not sit if a fair-minded and informed lay observer would have
reasonable apprehension that the judge might not bring an impartial mind to
the resolution of the question the judge is required to decide.
 Tests from Ebner (2000) 205 CLR 337 & Muir [2007] 3 NZLR 493 applied by
McGrath J
 I am quite unable to find any factor in the shared land-owning and racehorse
activities that an observer reasonably could consider more likely to give rise to
some unconscious preference in a particular case than would a mere close
personal friendship between a judge and a member of the Bar
 Finding per Gault J - but Blanchard J observed that more could have been
disclosed in writing by Wilson J 22
Saxmere
 Justice Wilson
 Saxmere v Wool Board Disestablishment Company Ltd (No 2) [2010] 1
NZLR 76
 Saxmere applied for recall of judgment
 Justice Wilson seeks leave to make second statement
 … which suggested he had not made a full disclosure before the
earlier hearing [2010] 1 NZLR 76 at 78
 Invited by Court to make third factual statement
 This changed the previous perception of Blanchard and Gault JJ in
Saxmere (No 1) that Wilson J was not “beholden” financially to counsel
 The level of indebtedness ($75k-$250k) could not be regarded as
“minimal” or “immaterial” and had it been disclosed earlier would
have been sufficient for a finding of apparent bias to be made out
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Judge, Rich Hill Stud & Counsel

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 Saxmere v Wool Board Disestablishment Company Ltd (No 2)
[2010] 1 NZLR 76 at 81
 The Judge and Mr Galbraith must have been reliant upon one
another, during the very time when the Saxmere judgment was
reserved in the Court of Appeal, for mutual cooperation to
enable the funding and completion of the purchase of the
additional land. That too is a matter which might raise a
question in the mind of the observer about the Judge’s ability to
address the issues raised by the appeal without being
unconsciously affected by this ongoing aspect of his business
relationship with counsel. The Judge’s shareholding in Rich Hill
was not at that time merely a passive investment.

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 Wilson v Attorney-General [2011] 1 NZLR 399
 Saxmere and retired Justice Thomas complained to the Judicial Conduct
Commissioner
 Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004
 Commissioner recommended appointment of Judicial Conduct Panel on
ground that if established, allegations, would warrant consideration of
removal of judge
 Acting Attorney-General accepted recommendation and appointed
Judicial Conduct Panel
 Justice Wilson applied for judicial review of Commissioner’s
recommendation and Acting Attorney-General’s decision
 Decisions set aside and referred back to the Commissioner
 Proceedings settled without rehearing

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 Wilson v Attorney-General [2011] 1 NZLR 399
 Commissioner had identified appropriate standard
 Conduct had to be very serious going to judge’s fitness for office
 Commissioner had erred in law when he failed to identify the matters
that should be subject to inquiry by the Panel
 It was not sufficient to recommend that the Panel should inquire into
the entire complaint and should have excluded matters of no
substance
 No breach of natural justice
 Judge had a proper opportunity to put his point of view
 Commissioner empowered to have regard to any material regardless of
whether hearsay, confidential or privileged

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 Persons who are prima facie disqualified for personal
or pecuniary interests may be held, on grounds of
necessity, competent and obliged to adjudicate
 Necessity prevails where no other competent and duly
qualified tribunal can be constituted
 Joseph, Constitutional and Administrative Law in New
Zealand

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