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Annual Report for 2013/2014

Download the Annual Report 2013/14 (PDF, 516Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

Contents

• This report
• The Commissioner and Deputy Commissioner
• The complaint process
• Advice to the public
• Complaints received
• Decisions made
• Responses of the Judiciary
• Comparative statistics
• Complexity and frequency
• Litigation
• Administrative support
• Legislative changes
• Final comments
• Overview of process for Judicial Conduct Commissioner and Judicial Conduct Panel

Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2014

This report

1. This is the ninth Annual Report since the first Commissioner took office on 1 August 2005, being the date on which the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the "Act") came into effect.

The Commissioner and Deputy Commissioner

2. The current Commissioner is Sir David Gascoigne. He took office on 3 August 2009. His term of office expired on 2 August 2014 but continues under carry-over provisions in the Act.
3. The current Deputy Commissioner is Alan Ritchie. He took office on 30 June 2011. The Deputy's role is to deal with complaints where the Commissioner has a conflict of interest, or where the Commissioner is absent or incapacitated, or where there is a vacancy in the office of Commissioner.

The complaint process

4. The Commissioner's role under the Act is to receive, assess and categorise complaints about the conduct of Judges.
5. The procedure generally adopted by the Commissioner, following the receipt of a complaint about the conduct of a Judge, is to notify the Judge of the complaint, and, where appropriate, to seek any comment which the Judge may wish to make. The Commissioner can obtain any Court documents, including transcripts of hearings, and can listen to any audio recordings. The Commissioner may also make such other inquiries as the Commissioner considers appropriate.
6. In carrying out his or her functions, the Commissioner must act independently, and must also act in accordance with the principles of natural justice.
7. Once the Commissioner has completed a preliminary examination of a complaint, the Commissioner must select and apply one of the four courses of action, as set down in the Act:
   1. the Commissioner may exercise the power to take no further action in respect of the complaint (under section 15A); or
   2. the Commissioner may (under section 16) dismiss the complaint on one of the nine grounds specified in that section; or
   3. the Commissioner may (under section 17) refer the complaint to the Head of Bench, that is, to the Head of the particular Court on which the Judge who is the subject of the complaint sits; or
   4. the Commissioner may (under section 18) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire further into any matters concerning the conduct of a Judge, if the Commissioner is of the opinion that:
      1. such an inquiry is necessary or justified; and
      2. if established, the conduct may warrant consideration of the removal of the Judge.
8. An illustration of the process is shown in the overview diagram.
9. The process, as briefly described above, but more particularly set out in the Act, is intended to serve the purpose of the Act.
   
   The purpose of the Act, as set out in section 4, is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by:
   1. providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office;
   2. establishing an office for the receipt and assessment of complaints about the conduct of Judges;
   3. providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

Advice to the public

10. The Commissioner provides advice to the public about the complaint process through:
    • A website which describes the complaint process and provides downloadable forms and guidance sheets.
    • A brochure entitled "Complaints about Judicial Conduct".
    • Responding to telephone, faxed, emailed or postal inquiries.

Complaints received

11. The following Table A shows the statistics for complaints received by the Commissioner for the five years from 1 August 2009 to 31 July 2014:

Complaint particulars	2013-14	2012-13	2011-12	2010-11	2009-10
Number of complaints received	235	258	328	181	223
Number of unfinalised complaints from previous year	79	97	146	138	63
Total	314	355	474	319	286
Outcomes
Decision to take no further action under Section 15A	25	62	95	20	2
Complaints dismissed under section 16	184	196	269	140	125
Complaints referred to Head of Bench under Section 17	4	7	6	4	3
Complaints referred to Head of Bench at outset with consent of complainant because of conflict of interests or under Section 8B	0	1	2	0	1
Recommendation that a Judicial Conduct Panel be appointed under Section 18	0	0	0	0	3
Complaints withdrawn	6	10	5	9	14
Total complaints dealt with	219	276	377	173	148
Number of complaints unfinalised at 31 July	95	79	97	146	138
Total	314	355	474	319	286

12. The following Table B shows the number of complaints received, on a Court by Court basis:

Courts	2013-14	2012-13	2011-12	2010-11	2009-10
Supreme Court	67	34	62	16	25
Court of Appeal	21	46	49	28	23
High Court	62	65	86	63	72
District Court	53	67	71	49	62
Family Court	24	30	52	19	29
Youth Court	0	0	0	0	0
Environment Court	5	4	2	1	5
Employment Court	1	4	0	2	2
Maori Land Court	0	5	1	2	2
Court Martial	0	0	0	0	0
Coroners Court	2	3	5	1	3
Total	235	258	328	181	223

13. During the year from 1 August 2013 to 31 July 2014, 188 complainants complained, in all, about 235 Judges. In other words, some complainants made complaints about more than one Judge. For example, some complainants complained about:
    1. a Judge who presided over a hearing at first instance, as well as Judges who then presided over one or more subsequent appeals;
    2. several Judges who comprise a panel of Judges at an appellate level (in the case of the Supreme Court, that may mean up to five Judges).
14. The following Table C shows a summarised year-on-year comparison between the past year (to 31 July 2014) and the previous year (to 31 July 2013). It also shows the increase or decrease in numbers, year-on-year.

Complaint particulars	Full year to 31 July 2014	Prior year to 31 July 2013	Full year comparison for 2012-13 and 2013-14 increase/(decrease)
			No.	%
Complaints received during year	235	258	(23)	(9%)
Unfinalised complaints from previous year	79	97	(18)	(19%)
Total	314	355	(41)	(12%)
Total dealt with and completed during year	219	276	(57)	(20%)
Total unfinished at year's end	95	79	16	20%
Total	314	355	(41)	(12%)

Decisions made

15. During the year from 1 August 2013 to 31 July 2014, the Commissioner and, in some instances, the Deputy Commissioner have made the following decisions:
    1. No further action: They decided to take no further action in respect of 25 complaints. This was done using the power conferred by Section 15A of the Act.
    2. Dismissal: They dismissed 184 complaints during the year upon one or more of the grounds set out in section 16(1) of the Act.
       
       The most common ground for the dismissal of complaints was where, essentially, the complainant called into question the validity of a decision made by a Judge. Section 8(2) of the Act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or other decision made by a Judge in relation to any legal proceedings. The proper avenue for that is by way of appeal or application for judicial review. The Commissioner's jurisdiction extends to issues of judicial conduct and not to judicial decisions as such.
       
       Generally, the statutory grounds for the dismissal of complaints were varied and included these:
       1. that the complaint fell outside the Commissioner's jurisdiction (most notably where section 8(2) of the Act had effect);
       2. that the complaint had no bearing on judicial functions;
       3. that the complaint was frivolous, vexatious or not in good faith;
       4. the complaint was about a judicial decision that is or was subject to a right of appeal or right to apply for judicial review;
       5. that the person who was the subject of the complaint was no longer a Judge;
       6. that the Commissioner had previously considered the subject matter of the complaint and it had not warranted any particular action.
    3. Reference to Head of Bench: They referred four complaints to the relevant Heads of Bench, pursuant to section 17(1) or section 8B(3) of the Act. It is then for the Head of Bench to determine how best to deal with matters, administratively, so far as the Judge complained of is concerned.
    4. Recommendation as to a Judicial Conduct Panel: No recommendation was made in the past year, pursuant to section 18(1) of the Act, that a Judicial Conduct Panel be appointed to inquire into matters concerning the alleged conduct of a Judge.
    5. Withdrawal: Six complaints were withdrawn by the respective complainants, following consideration of material provided by the Commissioner during the course of the preliminary examination.
16. Complaints have been based on a variety of grounds. By far the most common was that the person who was aggrieved considered that a decision, ruling or order of a Judge was wrong. As indicated in paragraph 15(b) above, a complaint on that basis falls outside the Commissioner's jurisdiction - and must be dismissed for that reason. Other grounds specified in complaints included: perceptions of rudeness, unfairness, inappropriate remarks, failure to listen, failure to take note of relevant material, prejudice, bias, predetermination, conflicts of interest and corruption. (Depending upon the circumstances, not all of those will fall within the Commissioner's jurisdiction.)
17. The mention of corruption, in particular, again merits some explanation. In some instances, a complainant has alleged that a Judge has been corrupt. The Commissioner and Deputy Commissioner take such an allegation especially seriously. But their investigations have revealed nothing that even hints at corruption. Some complainants do, however, conclude that the fact that a Judge disagrees with their (to them) self-evidently logical contentions must, in itself, be clear evidence that there has been corruption at work. But in no instance, so far, has any supporting information been proffered - or revealed, upon examination - to support the assertion.
18. Of the 95 unfinalised complaints in 2013/2014, one remains deferred pending the conclusion of relevant Court proceedings. The Act authorises the Commissioner, following consultation with the Head of Bench, to defer dealing with a complaint pending the outcome of the relevant proceedings or the conclusion of an appeal.

Responses of the Judiciary

19. The Commissioner is pleased to report that, overall, Judges about whom complaints have been made have, as previously, responded in a constructive and helpful manner. This materially assists the Commissioner in the examination of complaints and is appreciated by the Commissioner.
20. There were, again as previously, a few instances in which a Judge might have been expected to be more forthcoming in providing some information about the context from which a complaint has arisen. It does help to have a reasonably explicit balance of views to consider.

Comparative statistics

21. Table C (paragraph 14 above) provides a brief comparison of the number of complaints and the extent to which they were dealt with, as between:
    1. this reporting year (to 31 July 2014); and
    2. the previous reporting year (to 31 July 2013).
22. These points emerge:
    1. there were 23 fewer new complaints received this year than there were last year (making a total of 235 for this year). That is an decrease of 9%;
    2. there were 57 fewer complaints finalised this year than last year (making a total of 219 for this year). That is an decrease of 20%;
    3. the number of unfinalised complaints this year was 95, an increase of 16 on last year's figure of 79.
23. Thus, the number of new complaints received during the past year was fewer than for the previous year. The number of unfinalised complaints as at 31 July this year has risen slightly and, as just mentioned, stood at 95.
24. That figure of 95 is still higher than is desirable. It is hard to say what an optimum figure should be. There will always be complaints in the course of examination. Time must be allowed for processing them, for Judges to respond, for (sometimes) Judges' decisions and the transcripts or audio recordings to be obtained and studied, for (sometimes) the views of others to be sought, and for decisions to be considered, written and then dispatched.

Complexity and frequency

25. It is also the case that many complaints are becoming increasingly complex and detailed. A greater number now require more time to be spent in investigating them, considering them, and evolving a decision. Many decisions require significant elaboration (the longest, so far, covered 45 pages plus attachments).
26. In addition, in order to obtain a clearer picture of what has transpired in a courtroom, it is often very helpful to listen to the audio recording of a hearing. That takes time. But it seems increasingly necessary to do that, so as to be fair both to the complainant and to the Judge. An audio recording frequently discloses relevant information about the tone and temper of the exchanges that took place that is not at all apparent from a transcript.
27. A significant proportion of all complaints come from a comparatively small number of dissatisfied litigants who make repeated complaints when they receive judicial decisions which they do not accept. The complaints are generally expressed as raising issues of conduct on the part of the judge or judges concerned. Closer examination, however, often reveals that they are, essentially, about the correctness of judicial decisions - and thus beyond my jurisdiction. Nonetheless, it is important to approach and examine each complaint received impartially, on the premise that it may prove to be well founded.

Litigation

28. As a separate but often related issue, there has also been a growing trend for some complainants, who are dissatisfied with the decision made by the Commissioner in respect of their complaint, then to initiate legal proceedings against the Commissioner, by way of judicial review, in an attempt to have the decision overturned or remitted for reconsideration.
29. That is, of course, their right - as it is also the Commissioner's duty to defend such proceedings where it is wrongly alleged that the Commissioner or the Deputy has acted unlawfully.
30. The point, for the purpose of this report, however, is to note that attending to these litigious efforts is requiring an increasing amount of time and attention, as well as incurring attendant legal fees.

Administrative support

31. The Ministry of Justice is the authority that is responsible for the provision of administrative support. It currently makes available - on a part-time basis - the services of five highly talented people, with different skills. It also provides premises and equipment. These administrative arrangements do assist with the burden of work. It remains the case, however, that I, as Commissioner, and on occasions Mr Ritchie, as Deputy Commissioner, still remain under significant pressure.

Legislative changes

32. In the previous annual report, I also mentioned the need for some legislative change. One of the specific changes I had proposed (a broader basis for delegation to the Deputy Commissioner) is included in the Statutes Amendment Bill currently before Parliament. If enacted, such a change would be beneficial. Another amendment will clarify a provision to dismiss a complaint.
33. The Act does contain some internal contradictions. These generally affect the approach and scope of activity that the Commissioner should undertake in carrying out his or her responsibilities under the Act. For example, the Commissioner is required by the Act to conduct "preliminary examinations" of complaints. This suggests something of a fast and almost cursory nature. By contrast, though, the Commissioner is also required to specify the "grounds" or "reasons" for each decision. And those should, desirably, be sufficiently well researched and robustly expressed to withstand the frequent applications for judicial review that are made.
34. These apparent contradictions in the Act do not currently present a serious problem. (In the example just given, the practice has been to adopt the more studied approach.) Nonetheless, the Act has been in force for nine years now, and a review of its structure and the suitability of its principal provisions could usefully be carried out.

Final comments

35. I am hopeful that in next year's annual report it will be possible to record a further reduction (towards the indefinable optimum) in the number of unfinalised complaints. Such a reduction is not an end in itself. Its purpose is to improve the efficiency of operations, in order to reduce the time between complaints being lodged and decisions being completed. And that helps serve the objectives of the Act.
36. I wish to express my gratitude to:
    • the Deputy Commissioner;
    • the personnel provided by the Ministry to work with me;
    • the counsel who represent me in the continuing flow of litigation; and
    • all others who have assisted me, in many ways, throughout the past year.

10 October 2014

Sir David Gascoigne, KNZM, CBE
Judicial Conduct Commissioner

Overview of process for Judicial Conduct Commissioner and Judicial Conduct Panel

† Judicial Conduct Commissioner or Commissioner includes a Deputy Judicial Conduct Commissioner carrying out the Commissioner's functions when the Commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of Commissioner.

Annual Report for 2012/2013

Download the Annual Report 2012/13 (PDF, 172Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004

Contents

• This Report
• The Commissioner and the Deputy Commissioner
• The Complaint process
• Complaints received
• Decisions made
• Responses of the Judiciary
• Comparative statistics
• Complexity and frequency
• Litigation
• Administrative support
• Legislative change
• Final comments
• Overview of Process for Judicial Conduct Commissioner and Judicial Conduct Panel

Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2013

This Report

1. This is the eighth Annual Report since the first Commissioner took office on 1 August 2005, being the date on which the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the "Act") came into effect.

The Commissioner and Deputy Commissioner

2. The current Commissioner is Sir David Gascoigne. He took office on 3 August 2009.

3. The current Deputy Commissioner is Alan Ritchie. He took office on 30 June 2011. The Deputy's role is to deal with complaints where the Commissioner has a conflict of interest, or where the Commissioner is absent or incapacitated, or where there is a vacancy in the office of Commissioner.

The Complaint Process

4. The Commissioner's role under the Act is to receive, assess and categorise complaints about the conduct of Judges.

5. The procedure generally adopted by the Commissioner, following the receipt of a complaint about the conduct of a Judge, is to notify the Judge of the complaint, and to seek any comment which the Judge may wish to make. The Commissioner can obtain any Court documents, including transcripts of hearings, and can listen to any sound recordings. The Commissioner may also make such other inquiries as the Commissioner considers appropriate.

6. In carrying out his or her functions, the Commissioner must act independently, and must also act in accordance with the principles of natural justice.

7. Once the Commissioner has completed a preliminary examination of a complaint, the Commissioner must select and apply one of the four courses of action, as set down in the Act:

   1. the Commissioner may exercise the power to take no further action in respect of the complaint (under section 15A); or
   2. the Commissioner may (under section 16) dismiss the complaint on one of the nine grounds specified in that section; or
   3. the Commissioner may (under section 17) refer the complaint to the Head of Bench, that is, to the Head of the particular Court on which the Judge who is the subject of the complaint sits; or
   4. the Commissioner may (under section 18) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire further into any matters concerning the conduct of a Judge, if the Commissioner is of the opinion that:
      1. such an inquiry is necessary or justified; and
      2. if established, the conduct may warrant consideration of the removal of the Judge.

8. An illustration of the process is shown in the attached diagram.

9. The process, as briefly described above, but more particularly set out in the Act, is intended to serve the purpose of the Act.
   
   The purpose of the Act, as set out in section 4, is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by:

   1. providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office;
   2. establishing an office for the receipt and assessment of complaints about the conduct of Judges;
   3. providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

Advice to the Public

10. The Commissioner provides advice to the public about the complaint process through:
    • A website which describes the complaint process and provides downloadable forms and guidance sheets.
    • A brochure entitled "Complaints about Judicial Conduct".
    • Responding to telephone, emailed or postal inquiries.

Complaints Received

11. The following Table A shows the statistics for complaints received by the Commissioner for the five years from 1 August 2008 to 31 July 2013:

Complaint particulars	2012-13	2011-12	2010-11	2009-10	2008-09
Number of complaints received	258	328	181	223	139
Number of unfinalised complaints from previous year	97	146	138	63	50
Total	355	474	319	286	189
Outcomes
Decision to take no further action under Section 15A	62	95	20	2	0
Complaints dismissed under section 16	196	269	140	125	113
Complaints referred to Head of Bench under Section 17	7	6	4	3	4
Complaints referred to Head of Bench at outset with consent of complainant because of conflict of interests or under Section 8B	1	2	0	1	0
Recommendation that a Judicial Conduct Panel be appointed under Section 18	0	0	0	3	0
Complaints withdrawn	10	5	9	14	9
Total complaints dealt with	276	377	173	148	126
Number of complaints unfinalised at 31 July	79	97	146	138	63
Total	355	474	319	286	189

12. The following Table B shows the number of complaints received, on a Court by Court basis:

Courts	2012-13	2011-12	2010-11	2009-10	2008-09
Supreme Court	34	62	16	25	4
Court of Appeal	46	49	28	23	12
High Court	65	86	63	72	44
District Court	67	71	49	62	48
Family Court	30	52	19	29	27
Youth Court	0	0	0	0	0
Environment Court	4	2	1	5	3
Employment Court	4	0	2	2	0
Māori Land Court	5	1	2	2	1
Court Martial	0	0	0	0	0
Coroners Court	3	5	1	3	0
Total	258	328	181	223	139

13. During the year from 1 August 2012 to 31 July 2013, 188 complainants complained, in all, about 258 Judges. In other words, some complainants made complaints about more than one Judge. For example, some complainants complained about:

    1. a Judge who presided over a hearing at first instance, as well as Judges who then presided over one or more subsequent appeals;
    2. several Judges who comprise a panel of Judges at an appellate level.

14. The following Table C shows a summarised year-on-year comparison between the past year (to 31 July 2013) and the previous year (to 31 July 2012). It also shows the increase or decrease in numbers, year-on-year.

Complaint particulars	Full year to 31 July 2013	Prior year to 31 July 2012	Full year comparison for 2010-11 and 2011-12 increase/(decrease)
			No.	%
Complaints received during year	258	328	(70)	(21%)
Unfinalised complaints from prior year	97	146	(49)	(34%)
Total	355	474	(119)	(25%)
Total dealt with and completed during year	276	377	(101)	(27%)
Total unfinalised at year's end	79	97	(18)	(19%)
Total	355	474	(119)	(25%)

Decisions Made

15. During the year from 1 August 2012 to 31 July 2013, the Commissioner and, in some instances, the Deputy Commissioner have made the following decisions:

    1. No further action: They decided to take no further action in respect of 62 complaints. This was done using the power conferred by Section 15A of the Act.

    2. Dismissal: They dismissed 196 complaints during the year upon one or more of the grounds set out in section 16(1) of the Act.
       
       The most common ground for the dismissal of complaints occurred where, essentially, the complainant called into question the validity of a decision made by a Judge. Section 8(2) of the Act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or other decision made by a Judge in relation to any legal proceedings. The proper avenue for that is by way of appeal or application for judicial review. The Commissioner's jurisdiction extends to issues of judicial conduct and not to judicial decisions as such.
       
       Generally, the statutory grounds for the dismissal of complaints were varied and included these:

       1. that the complaint fell outside the Commissioner's jurisdiction (most notably where section 8(2) of the Act had effect);
       2. that the complaint had no bearing on judicial functions;
       3. that the complaint was frivolous, vexatious or not in good faith;
       4. the complaint was about a judicial decision that is or was subject to a right of appeal or right to apply for judicial review;
       5. that the person who was the subject of the complaint was no longer a Judge;
       6. that the Commissioner had previously considered the subject matter of the complaint and it had not warranted any particular action.

    3. Reference to Head of Bench: They referred 8 complaints to the relevant Heads of Bench, pursuant to section 17(1) or section 8B of the Act. It is then for the Head of Bench to determine how best to deal with matters, administratively, so far as the Judge complained of is concerned.

    4. Recommendation as to a Judicial Conduct Panel: No recommendation was made in the past year, pursuant to section 18(1) of the Act, that a Judicial Conduct Panel be appointed to inquire into matters concerning the alleged conduct of a Judge.

    5. Withdrawal: 10 complaints were withdrawn by the respective complainants, following consideration of material provided by the Commissioner during the course of the preliminary examination.

16. Complaints have been based on a variety of grounds. By far the most common was that the person who was aggrieved considered that a decision, ruling or order of a Judge was wrong. As indicated in paragraph 15(b) above, a complaint on that basis falls outside the Commissioner's jurisdiction – and must be dismissed for that reason. Other grounds specified in complaints included: perceptions of rudeness, unfairness, inappropriate remarks, failure to listen, failure to take note of relevant material, prejudice, bias, predetermination, conflicts of interest and corruption. (Depending upon the circumstances, not all of those will fall within the Commissioner's jurisdiction.)

17. The mention of corruption, in particular, again merits some explanation. In a few instances, a complainant has alleged that a Judge has been corrupt. The Commissioner and Deputy Commissioner take such an allegation especially seriously. But their investigations have revealed nothing that even hints at corruption. Some complainants do, however, conclude that the fact that a Judge disagrees with their contentions must, in itself, be clear evidence that there has been corruption. But in no instance, so far, has any supporting information been proffered – or revealed upon examination – to support the assertion.

18. Of the 79 unfinalised complaints in 2012/2013, two remain deferred pending the conclusion of relevant Court proceedings. The Act authorises the Commissioner, following consultation with the Head of Bench, to defer dealing with a complaint pending the outcome of the relevant proceedings or the conclusion of an appeal.

Responses of the Judiciary

19. The Commissioner is pleased to report that, overall, Judges about whom complaints have been made have, as previously, responded in a constructive and helpful manner. This materially assists the Commissioner in the examination of complaints and is appreciated by the Commissioner.

20. There were, again as previously, just a few instances in which a Judge might have been expected to be more forthcoming in providing some information about the context from which a complaint has arisen. It does help to have a reasonably explicit balance of views to consider.

Comparative statistics

21. Table C (paragraph 14 above) provides a brief comparison about the number of complaints and the extent to which they were dealt with, as between:

    1. this reporting year (to 31 July 2013); and
    2. the previous reporting year (to 31 July 2012).

22. These points emerge:

    1. there were 70 fewer new complaints received this year than there were last year (making a total of 258 for this year). That is an decrease of 21%;
    2. there were 101 fewer complaints finalised this year than last year (making a total of 276 for this year). That is an decrease of 27%;
    3. the number of unfinalised complaints this year was 79, a reduction of 18 below last year's figure of 97. That is a reduction of 19%.

23. Thus, the number of new complaints received during the past year was fewer than for the previous year. But, perhaps more significantly, the number of unfinalised complaints as at 31 July this year has fallen and, as just mentioned, stood at 79.

24. That figure of 79 is still somewhat higher than is desirable. But for unfinalised complaints progress is being made. It is hard to say what an optimum figure should be. There will always be complaints in the course of examination. Time must be allowed for processing them, for Judges to respond, for (sometimes) Judges' decisions and the transcripts or recordings to be obtained and studied, for (sometimes) the views of others to be sought, and for decisions to be written and then dispatched.

Complexity and frequency

25. It is also the case that many complaints are becoming increasingly complex and detailed. A greater number now require more time to be spent in investigating them, considering them, and evolving a decision.

26. A significant proportion of all complaints come from a comparatively small number of dissatisfied litigants who make repeated complaints when they receive judicial decisions which they do not accept. The complaints are generally expressed as raising issues of conduct on the part of the judge or judges concerned. Closer examination, however, often reveals that they are, essentially, about the correctness of judicial decisions – and thus beyond my jurisdiction. Nonetheless, it is important to examine each case received on the premise that it may prove to be well founded.

Litigation

27. As a separate but often related issue, there has also been a growing number of instances in which some complainants who are dissatisfied with the decision made by the Commissioner in respect of their complaint then initiate legal proceedings against the Commissioner, by way of judicial review, in an attempt to have the decision overturned or remitted for reconsideration.

28. That is, of course, their right – though in some of these cases I do seek to have these proceedings regarded by the Court as being vexatious or as an abuse of the Court's processes.

29. The point, for the purpose of this report, however, is to note that attending to these litigious efforts is requiring an increasing amount of time and attention, as well as incurring attendant legal fees.

Administrative support

30. In last year's annual report, I mentioned that the administering authority, the Ministry of Justice, had provided additional resources – personnel, premises and equipment – to assist with the burden of work. These administrative arrangements are working satisfactorily, though I, as Commissioner, and on occasions Mr Ritchie, as Deputy Commissioner, still remain under significant pressure.

Legislative changes

31. In the previous annual report, I also mentioned the need for some legislative change. I understand that one of the specific changes I had proposed (a broader basis for delegation to the Deputy Commissioner) may be included in the Statutes Amendment Bill shortly to be introduced in Parliament. If enacted, such a change would be beneficial.

32. There are other aspects of the Act which recent experience has shown to be unsatisfactory. I propose to advance proposals for change in that regard, as well.

Final comments

33. I am hopeful that in next year's annual report it will be possible to record a further reduction (towards the indefinable optimum) in the number of unfinalised complaints. Such a reduction is not an end in itself. Its purpose is to improve the efficiency of operations, in order to reduce the time between complaints being lodged and decisions being completed. And that helps serve the objectives of the Act.

34. I wish to express my gratitude to the Deputy Commissioner, to the personnel provided by the Ministry to work with me – and to all those who have assisted me, in many ways, throughout the past year.

30 September 2013

Sir David Gascoigne, KNZM, CBE
Judicial Conduct Commissioner

Overview of Process for Judicial Conduct Commissioner and Judicial Conduct Panel

† Judicial Conduct Commissioner or Commissioner includes a Deputy Judicial Conduct Commissioner carrying out the Commissioner's functions when the Commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of Commissioner.

Annual Report for 2011/2012

Download the Annual Report 2011/12 (PDF, 366Kb)

Presented to the House of Representatives pursuant to Clause 9(2), Schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004

Contents

• This Report
• The Commissioner
• The Deputy Commissioner
• The Complaint Process
• Advice to the Public
• Complaints received
• Decisions made
• Responses of the Judiciary
• General Observations
• Overview of Process for Judicial Conduct Commissioner and Judicial Conduct Panel

Annual Report of the Judicial Conduct Commissioner for the year ended 31 July 2012

This Report

1. This is the seventh Annual Report since the first Commissioner took office on 1 August 2005, being the date on which the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 came into effect.

The Commissioner

2. The first Commissioner appointed under the Act was Mr Ian Haynes. His term of office commenced on 1 August 2005 and concluded on 12 July 2009.

3. The second, and current, Commissioner is Sir David Gascoigne. He took office on 3 August 2009.

The Deputy Commissioner

4. An office called the Deputy Judicial Conduct Commissioner was established by an amendment to the Act. The amendment came into force on 23 March 2010.

5. The role of the Deputy Judicial Conduct Commissioner is to deal with complaints where the Commissioner has a conflict of interest, or where the Commissioner is absent or incapacitated, or where there is a vacancy in the office of Commissioner.

6. Mr Alan Ritchie was appointed to this position. He took office on 30 June 2011.

The Complaint Process

7. The Commissioner's role under the Act is to receive, assess and categorise complaints about the conduct of Judges.

8. The procedure generally adopted by the Commissioner, following the receipt of a complaint about the conduct of a Judge, is to notify the Judge of the complaint, and to seek any comment which the Judge may wish to make. The Commissioner can obtain any Court documents, including transcripts of hearings, and can listen to any sound recordings. The Commissioner may also make such other inquiries as the Commissioner considers appropriate.

9. In carrying out his or her functions, the Commissioner must act independently, and must also act in accordance with the principles of natural justice.

10. Once the Commissioner has completed a preliminary examination of a complaint, the Commissioner must select and apply one of the four courses of action, set down in the Act:

1. the Commissioner may exercise the power to take no further action in respect of the complaint (under section 15A, a power conferred by the amendment to the Act referred to in paragraph 4 above); or
2. the Commissioner may (under section 16) dismiss the complaint on one of the nine grounds specified in that section; or
3. the Commissioner may (under section 17) refer the complaint to the Head of Bench, that is, to the Head of the particular Court on which the Judge who is the subject of the complaint sits; or
4. the Commissioner may (under section 18) recommend that the Attorney-General appoint a Judicial Conduct Panel to inquire further into any matters concerning the conduct of a Judge, if the Commissioner is of the opinion that:
   1. such an inquiry is necessary or justified; and
   2. if established, the conduct may warrant consideration of the removal of the Judge.

11. An illustration of the process is shown in the attached diagram.

12. The process, as briefly described above, but more particularly set out in the Act, is intended to serve the purpose of the Act.
The purpose of the Act, as set out in section 4, is to enhance public confidence in, and to protect the impartiality and integrity of, the judicial system by:

1. providing a robust investigation process to enable informed decisions to be made about the removal of Judges from office;
2. establishing an office for the receipt and assessment of complaints about the conduct of Judges;
3. providing a fair process that recognises and protects the requirements of judicial independence and natural justice.

Advice to the Public

13. The Commissioner provides advice to the public about the complaint process through:

• A website which describes the complaint process and provides downloadable forms and guidance sheets.
• A brochure entitled "Complaints about Judicial Conduct".
• Responding to telephone, emailed or postal inquiries.

Complaints Received

14. The following Table A shows the statistics for complaints received by the Commissioner for the five years from 1 August 2007 to 31 July 2012:

Complaint particulars	2011-12	2010-11	2009-10	2008-09	2007-08
Number of complaints received	328	181	223	139	101
Number of unfinalised complaints from previous year	146	138	63	50	31
Total	474	319	286	189	132
Outcomes
Decision to take no further action under Section 15A	95	20	2	0	0
Complaints dismissed under section 16	269	140	125	113	80
Complaints referred to Head of Bench under Section 17	6	4	3	4	2
Complaints referred to Head of Bench at outset with consent of complainant because of conflict of interests or under Section 8B	2	0	1	0	0
Recommendation that a Judicial Conduct Panel be appointed under Section 18	0	0	3	0	0
Complaints withdrawn	5	9	14	9	0
Total complaints dealt with	377	173	148	126	82
Number of complaints unfinalised at 31 July	97	146	138	63	50
Total	474	319	286	189	132

15. The following Table B shows the number of complaints received, on a Court by Court basis:

Courts	2011-12	2010-11	2009-10	2008-09	2007-08
Supreme Court	62	16	25	4	10
Court of Appeal	49	28	23	12	9
High Court	86	63	72	44	19
District Court	71	49	62	48	50
Family Court	52	19	29	27	13
Youth Court	0	0	0	0	0
Environment Court	2	1	5	3	0
Employment Court	0	2	2	0	0
Māori Land Court	1	2	2	1	0
Courts Martial Appeal Court	0	0	0	0	0
Coroners Court	5	1	3	0	0
Total	328	181	223	139	101

16. During the year from 1 August 2011 to 31 July 2012, 186 complainants complained, in all, about 328 Judges. In other words, some complainants made complaints about more than one Judge. For example, some complainants complained about:

1. a Judge who presided over a hearing at first instance, as well as Judges who then presided over one or more subsequent appeals;
2. several Judges who comprise a panel of Judges at an appellate level.

17. The following Table C shows a summarised year-on-year comparison between the past year (to 31 July 2012) and the previous year (to 31 July 2011). It also shows the increase or decrease in numbers, year-on-year.

Complaint particulars	Full Year to 31 July 2012	Prior year to 31 July 2011	Full year comparison for 2010-11 and 2011-12 increase/(decrease)
			No.	%
Complaints received during year	328	181	147	81%
Unfinalised complaints from prior year	146	138	8	6%
Total	474	319	155	49%
Total dealt with and completed during year	377	173	204	118%
Total unfinalised at year's end	97	146	(49)	(34%)
Total	474	319	155	49%

Decisions Made

18. During the year from 1 August 2011 to 31 July 2012, the Commissioner and, in some instances, the Deputy Commissioner have made the following decisions:

1. No further action: They decided to take no further action in respect of 95 complaints. This was done using the power conferred by Section 15A of the Act.
2. Dismissal: They dismissed 269 complaints during the year upon one or more of the grounds set out in section 16(1) of the Act.
   
   The most common ground for the dismissal of complaints occurred where, essentially, the complainant called into question the validity of a decision made by a Judge. Section 8(2) of the Act provides that it is not a function of the Commissioner to challenge or call into question the legality or correctness of any judgment or other decision made by a Judge in relation to any legal proceedings. The proper avenue for that is by way of appeal or application for judicial review. The Commissioner's jurisdiction extends to issues of judicial conduct and not to judicial decisions as such.
   
   Other grounds for the dismissal of complaints were varied and included these:
   1. that the complaint fell outside the Commissioner's jurisdiction;
   2. that the complaint had no bearing on judicial functions;
   3. that the complaint was frivolous, vexatious or not in good faith;
   4. the complaint was about a judicial decision that is or was subject to a right of appeal or right to apply for judicial review;
   5. that the person who was the subject of the complaint was no longer a Judge;
   6. that the Commissioner had previously considered the subject matter of the complaint and it had not warranted any particular action.
3. Reference to Head of Bench: They referred 8 complaints to the relevant Heads of Bench, pursuant to section 17(1) or section 8B of the Act. It is then for the Head of Bench to determine how best to deal with matters, so far as the Judge complained of is concerned.
   
   In two of those 8 instances, the Commissioner felt that there was, or could be a perception of, a conflict of interest. He then referred the complaints to the Deputy Commissioner. For his part, the Deputy Commissioner (for different reasons) reached the same conclusion about a conflict. So, as required by section 8B of the Act, he referred those complaints to the relevant Head of Bench.
4. Recommendation as to a Judicial Conduct Panel: No recommendation was made in the past year, pursuant to section 18(1) of the Act, that a Judicial Conduct Panel be appointed to inquire into matters concerning the alleged conduct of a Judge.
5. Withdrawal: 5 complaints were withdrawn by the respective complainants, following consideration of material provided by the Commissioner during the course of the preliminary examination.

19. Complaints have been based on a variety of grounds. By far the most common was that a decision, ruling or order of a Judge was wrong. As indicated in paragraph 18(b) above, a complaint on that basis falls outside the Commissioner's jurisdiction. Other grounds specified in complaints included: perceptions of rudeness, unfairness, inappropriate remarks, failure to listen, failure to take note of relevant material, prejudice, bias, predetermination, conflict of interests and corruption. (Depending upon the circumstances, not all of those will fall within the Commissioner's jurisdiction.)

20. The mention of corruption, in particular, merits some explanation. In a few instances, a complainant has alleged that a Judge has been corrupt. The Commissioner and Deputy Commissioner take such an allegation especially seriously. But their investigations have revealed nothing that even hints at corruption. Some complainants do, however, conclude that the fact that a Judge disagrees with their contentions must, in itself, be clear evidence that there has been corruption. But in no instances, so far, has any supporting information been proffered, or revealed, to support the assertion.

21. Of the 97 unfinalised complaints in 2011/2012, 7 remain deferred pending the conclusion of relevant Court proceedings. The Act authorises the Commissioner, following consultation with the Head of Bench, to defer dealing with a complaint pending the outcome of the relevant proceedings or the conclusion of an appeal.

Responses of the Judiciary

22. The Commissioner is pleased to report that, overall, Judges about whom complaints have been made have responded in a constructive and helpful manner. This materially assists the Commissioner in the examination of complaints and is appreciated by the Commissioner.

23. There were a few instances in which a Judge might have been expected to be a little more forthcoming in providing some view about the context from which a complaint has arisen.

General Observations

24. Table C (paragraph 17 above) provides a brief comparison about the number of complaints and the extent to which they were dealt with, as between:

1. this reporting year (to 31 July 2012); and
2. the previous reporting year (to 31 July 2011).

25. These points emerge:

1. there were 147 more new complaints received this year than there were last year (making a total of 328 for this year). That is an increase of 81%;
2. there were 204 more complaints finalised this year than last year (making a total of 377 for this year). That is an increase of 118%;
3. the number of unfinalised complaints this year was 97, a reduction of 49 below last year's figure of 146. That is a reduction of 34%.

26. Thus, the workload of the Commissioner continues to grow. But the rate at which complaints are being considered and finalised has improved markedly. The number of unfinalised complaints as at 31 July this year has fallen and, as just mentioned, stands at 97.

27. That figure of 97 is still too high. But significant progress is being made. It is hard to say what an optimum figure should be. There will always be complaints in the course of examination. Time must be allowed for processing them, for Judges to respond, for (sometimes) decisions and transcripts or recordings to be obtained and studied, for (sometimes) the views of others to be sought, and for decisions to be written.

28. It is also the case that many complaints are becoming increasingly complex and detailed. A greater number now require more time to be spent in investigating them, considering them, and evolving a decision.

29. In the two previous annual reports, I was overtly critical of the lack of resources with which to undertake the work required to be done. The workload continued to grow, but the resources needed - especially people, but also premises and equipment - were increasingly inadequate for the purpose.

30. At the end of the last year's annual report, I mentioned that productive discussions were at last being held with the administering authority, the Ministry of Justice. I am pleased to say that those discussions have since proved to be fruitful.

31. More personnel, to assist in the administration and examination of complaints, have been made available. New premises have been found. (Previously, there was no space for the Commissioner in the Office of the Judicial Conduct Commissioner.) New equipment has been installed. I am grateful to the senior personnel at the Ministry who have assisted with these necessary improvements.

32. In fact, the provision of additional resources (when taken with the increasing numbers of complaints) has created a different issue. The amount of work confronting me, as Commissioner, has grown. I do have the great advantage of support from the Deputy Commissioner, Mr Ritchie. But the circumstances in which he can act of his own initiative are tightly constrained (see paragraph 5).

33. One way of easing the position would be to amend the Act to provide for the appointment of more than one Judicial Conduct Commissioner - one of whom would be Chief Judicial Conduct Commissioner. (This may be compared with the provisions of the Ombudsmen Act 1975.)

34. In the longer term such a change may be necessary. But for present purposes, a simpler solution is available. It is to amend the Act to allow the Commissioner to delegate to the Deputy Commissioner the power to examine and make decisions in respect of specific identified complaints, where the Commissioner considers that to be expedient and conducive to attaining the purpose of the Act. The Deputy may then exercise the powers of the Commissioner in relation to those complaints.

35. I propose to pursue that proposal. There are a number of other amendments to the Act that could usefully be made which would improve its effectiveness, without derogating from the principles upon which it is founded. I propose to advance these issues as well.

36. I am hopeful that in next year's annual report I will be able to record a further reduction (towards the indefinable optimum) in the number of unfinalised complaints. Such a reduction is not an end in itself. Its purpose is to improve the efficiency of operations, in order to reduce the time between complaints being lodged and decisions being completed. And that helps serve the objectives of the Act.

37. I wish to express my gratitude to the Ministry and to all those who have assisted me, in many ways, throughout the past year.

21 August 2012

Sir David Gascoigne, KNZM, CBE
Judicial Conduct Commissioner

Overview of Process for Judicial Conduct Commissioner and Judicial Conduct Panel

† Judicial Conduct Commissioner or Commissioner includes a Deputy Judicial Conduct Commissioner carrying out the Commissioner's functions when the Commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of Commissioner.

Annual Report for 2010/2011

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Annual Report for 2009/2010

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Annual Report for 2008/2009

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