Appeal of Family Court decision – unfair trial – judicial duties – decision declared null – Bangalore Principles – Evidence Act 2006, s 85 – Guidelines for Judicial Conduct 2019
W v W  NZHC 3491 per Ellis J.
Prior to their split, Mr and Mrs W had been in a 16-year marriage with three children. They engaged in mediation and resolved their property dispute matters in 2006. After their relationship was formally dissolved in 2008, Mrs W applied to set aside the 2006 agreement. They came to another agreement in 2011, but Mr W later challenged it and instructed Mrs M KC in doing so.
Mrs M KC relied on a perjury allegation as a central aspect of her litigation strategy. In an application to ACC to obtain files, Mrs M KC wrote that Mrs W had “deliberately misled the court and committed perjury to provide a false factual basis to explain her acceptance of the agreement in 2006”.
The Family Court judge (FCJ) attached significant evidential weight to the ACC application in his 2015 decision. In 2018, Mrs W was sentenced to 12 months’ home detention for perjury, but this was later overturned on appeal.
During Mrs W’s cross-examination, which lasted six hours and 15 minutes, the FCJ interrupted her answers more than 20 times, with eight interruptions occurring within an hour on one occasion.
Sometimes, the FCJ’s questions spanned several pages of transcript, yet he tended to insist Mrs W to answer only “yes” or “no” and forbade elaboration. Mrs W expressed audible distress, tears and commented more than once that she felt unheard.
Mrs W had incurred significant losses in the ongoing dispute. The FCJ had set aside two relationship property settlement agreements in favour of Mr W. Additionally, Mrs W faced police searches of her home, prosecution for assault and the perjury conviction and sentence that was later overturned on appeal. Overall, Mrs W had $250,000 in costs awarded against her and had effectively been adjudicated bankrupt.
The appeal was advanced on two grounds: (1) that the 2015 FC decision was wrong on the merits; and (2) the hearing was so unfair that the resulting decision was effectively a nullity.
Ellis J discussed the Bangalore Principles in her judgment. She explained that at a domestic level, the Guidelines for Judicial Conduct 2019 are intended to reflect the Bangalore Principles, which are six core values of the judiciary that are intended to establish standards of ethical conduct for judges. Value 2 (impartiality) and Value 3 (integrity) were highlighted and applied.
Justice Ellis discussed the case of Serafin v Malkiewicz  UKSC 23,  1 WLR 2455, finding it to be the most useful authority regarding judicial partiality and bias.
In that case, the UK Supreme Court found the nature and tone of the judge’s interventions rendered the trial unfair. Justice Ellis highlighted how a judgment, which was the product of an unfair trial and unable to be cured by an apparently fair and well-reasoned decision, could be a nullity.
Justice Ellis determined that in Mrs W’s case, the decision by Judge Peter Callinicos was unfairly influenced by the ACC application. The alleged perjury should not have been central in assessing Mrs W’s credibility and evidence. The fact that the perjury charge was not made out added force to the determination.
Justice Ellis acknowledged that Judge Callinicos had been misled on some matters. But she said the nature, tone and number of his interruptions contributed to the opposing counsel’s efforts to undermine and belittle Mrs W. Justice Ellis said the interruptions were pejorative and at times lengthy.
“Ultimately, the number and nature of the judge’s interventions (and the absence of intervention in the face of unfair questioning by counsel) speak for themselves. Overall, their tone, nature and frequency are indicative of him ‘entering the fray’. And by the end of the first day at latest of Mrs W’s cross-examination, he was making ‘obvious his profound disbelief in the validity of [Mrs W’s] case’. All of this suffices to render the hearing unfair,” Justice Ellis said.
Applicable principles: whether trial was unfair – Bangalore Principles – Guidelines for Judicial Conduct 2019 – impartiality – whether judge’s decision-making process and decision was impartial – integrity – whether judge performed his duties without favour, bias or prejudice – judicial duties
Held: The Family Court decision and related costs were set aside.
The parties wanted the High Court to decide the appeal, based on its merits. Justice Ellis expressed uncertainty about the court’s jurisdiction to do so, saying a formal transfer of the file from the Family Court would be necessary for a complete rehearing.
Vivian Mitchell is an LLB/BA graduate.