Law Society urged to take concerns over judges’ actions to Attorney-General

A report written by legal luminaries including Sir Geoffrey Palmer, several QCs and various law professors recommended the NZ Law Society urge the Chief Justice and Attorney-General to address concerns raised in the “Moana” case.

But the Law Society made no such urging, and that has not gone down well with some of its members, including the Wellington branch.

Palmer and the others are members of the Law Society’s “Rule of Law Committee”, and late last year they considered a potential rule of law issue involving alleged inappropriate judicial conduct.

The conduct in question involved Family Court Judge Peter Callinicos being contacted by Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran in relation to the part-heard “Moana” case.

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That case revolved around whether a five-year-old Māori girl who had been in the care of a Pākehā couple for three years should be placed with a Māori family so that, as Oranga Tamariki said, her cultural needs could be met. Judge Callinicos decided she should stay with the Pākehā couple.

But during the case, the judge said senior judges wanted to convey concerns from the late Oranga Tamariki interim chief executive Sir Wira Gardiner that Callinicos had “bullied” Oranga Tamariki staff giving evidence at the hearing.

In October last year, the Rule of Law Committee produced a 12-page report, in which it said the actions of the judges were “highly unconventional” and private meetings between Heads of Bench and a party to a current proceeding “undermines the separation of powers and independence of the judiciary” and “has the potential to undermine public confidence in the judicial system”.

The committee said that “if any unsuccessful litigant discovered later that the successful litigant had approached and had a series of private meetings with the Heads of Bench involving discussion about the conduct of the sitting judge while the case was being heard … then that unsuccessful litigant would be deeply aggrieved”.

The committee concluded that private meetings between a party to a current proceeding and a Head of Bench, and any subsequent attempt by a Head of Bench to meet with a sitting judge while the relevant proceeding is part-heard was inappropriate.

The committee made several recommendations to the Law Society, including “urging the use of conventional mechanisms which are consistent with the principles and Guidelines when dealing with alleged inappropriate judicial conduct”.The report was made to the Law Society on October 6. But the recommendations do not appear to have been acted upon.

This prompted the society’s Wellington branch to write to then-president of the Law Society, Tiana Epati, on March 18 this year, expressing concern “about the silence of the Society on this issue”.

Wellington branch president Christopher Griggs, who was on the Rule of Law Committee, wrote to Epati that saying the report’s findings should have made the Law Society “justifiably concerned at what appears to be a breach of the principle of judicial independence”,

Griggs told Epati the Wellington branch was concerned that the Law Society board “did not adopt what we consider to be well-judged and measured recommendations”.

He said the Law Society should communicate to the attorney-general its “concern at the prospect of senior public servants seeking private audiences with the Heads of Bench touching on matters before the courts”.

Epati responded to Griggs by letter on April 1, saying that the Law Society Board stood behind its earlier decision to not take any action.

She noted the Chief Justice’s creation of the Conduct Advisory Committee and said “the Board does not see how the additional communications suggested will add anything at this time”.

Epati finished her three-year term as president in April, and was replaced by Jacque​ Lethbridge.

Griggs said this week that the next step would be discussing the Rule of Law’s recommendations with the Law Society council which consisted of branch presidents, vice-presidents and others around the country.

If the council agreed that the society should abide by the recommendations, it would be binding, he said.

Griggs said while the Chief Justice could consider matters in terms of the judiciary, the Attorney-General could consider matters as they concerned the heads of government departments.

“We remain of the view that it is not okay for the head of a government department to have a ‘cup of tea and a bickie’ meeting with Heads of Bench to discuss matters subject of a part-heard hearing. It’s repugnant,” Griggs said.

Lethbridge was unavailable for comment this week, Law Society spokesperson Liam Kernaghan said.