Judical Recusal and Disclosure: To Disclose or Not? A Need for Further Guidance

Abstract

The recent high profile recusal case, Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, concerning a judge of New Zealand’s highest court, has highlighted problems in the area of recusal and disclosure in New Zealand. The Saxmere litigation raises important questions concerning the legitimacy, accountability, and openness of the recusal process for judges. The primary concern of this paper is the issue of public confidence and trust in the judiciary and, in particular, how public confidence with the system of judicial disclosure in New Zealand can be maintained. This paper examines disclosure obligations in three key areas. First, as imposing soft law expectations on judges. Secondly, as relevant to the question of apparent bias. And lastly, as a matter of judicial conduct and ethics. This paper concludes that there is a strong need for more guidance in the area of judicial disclosure to maintain public confidence in the judiciary. It is suggested that the Guidelines for Judicial Conduct should be strengthened to promote better disclosure practices. Apparent bias and – where the circumstances are sufficiently serious - disciplinary proceedings, under the Judicial Conduct Commissioner and Judicial Conduct Panel, can address the problem of inadequate disclosure and enhance disclosure practices.