Judicial Disqualification & Recusal in New Zealand
In New Zealand, “impartiality is the essential quality required of the judge.” See New Zealand Courts’ Guidelines-for-Judicial-Conduct,” Section E, Paragraph 20 (“That is made explicit by the judicial oath which requires judges to act “without fear or favour, affection or ill will”). However, two recent decisions of New Zealand’s Supreme Court reflect that a party cannot secure the disqualification of a New Zealand judge merely by alleging that the party believes the judge to be biased.
A 2010 New Zealand Lawyer article by Susannah Shaw (“To Disclose or Not”) discusses in detail a high-profile recusal case, Saxmere Company Ltd v Wool Board Disestablishment Company Ltd ; and, in particular, the need for New Zealand judge’s to disclose possible grounds for their recusal click here. However, in a more recent (2013) case, Rabson v Croad SC85/2012  NZSC , the New Zealand Supreme Court “raised the procedural bar” for judicial disqualifying judges in that country. .
Citing to Saxmere, the Rabson court noted that “the principles on which a judgment may be subject of an appeal on the ground of apparent bias are settled.” It said that, in seeking leave to bring an appeal to this Court on this ground an applicant has to identify circumstances which prima facie might have led either or both Judges to decide the appeal other than on its factual or legal merits. As well, the applicant must clearly state the connection between those circumstances and the concern that the Judge would not decide the case entirely on its merits.” The court went on to say that “[c]laims of bias, actual or apparent, must be squarely confronted when properly raised. It is not, however, responsible for an appellate court to entertain such claims on the basis of speculation
or other wholly unsubstantiated assertion.”
1. To review the New Zealand Courts’ Guidelines-for-Judicial-Conduct click here.
2. As Ms. Shaw points out here “the New Zealand Guidelines for Judicial Conduct (Guidelines) were approved in 2003, and made publicly available in late 2009.” Please note, however, that the Guidelines “are not a code of conduct, so as not to infringe on judicial independence; their purpose is to provide ‘practical guidance’ to judges.”
3. For a comprehensive overview of American law on the subject of recusal and disqualification which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges (Second Edition 2007). To locate libraries in New Zealand which have the most recent edition of Judicial Disqualification in their collection click here