Judicial recusal in New Zealand: Looking to procedure as the principled way forward
The well-documented Wool Board Disestablishment Co v Saxmere Co litigation thrust the often dormant issue of conflicts of interest between a judge and a litigant into the limelight. Now that the dust has settled on the controversy that culminated in Wilson J's resignation, it is pertinent to question the status quo and investigate the potential cause of the events and, more importantly, whether measures need to be taken to prevent another such occurrence. This paper takes a principled approach to analysing judicial recusal law in New Zealand, with a particular focus on procedure. In doing so, a mismatch between process theory and the reality of haphazard self-regulation highlights the procedural shortcomings of the current recusal paradigm. To remedy this, the author applies aspects of process theory to reform judicial recusal procedure and bring it in line with general civil litigation practice. The proposed reform instils some fundamental practices that are presently absent in recusal procedure. To contextualise the paper's findings, the author revisits the Saxmere saga to first posit that a lack of procedural safeguards may have contributed to the saga and two, to suggest that had the procedural safeguards proposed by this paper been in place, the controversy could have been mitigated, if not avoided.