Chapter 3 - Judicial appointments

Judicial recusal

It is a fundamental proposition of our legal system that a court should be fair and impartial. However, sometimes things may come to light that suggest a judge’s personal or prior “connection” with the case, or the circumstances of it, should lead that judge to not sit on it, notwithstanding the judge’s initial allocation to that case.

From a practical point of view, there is presently no legislation or any rules of court dealing with the process of recusal. This means that it is difficult for the bar and for litigants in person to know how to advance any concerns they may have.

In an Issues Paper published in March 2011,87 the Commission drew attention to the process problems in recusal cases, and the unsatisfactory state of practice surrounding them. We suggested each judicial bench be required to develop a recusal process, which should be published in the Gazette, similar to the way in which the President of the Court of Appeal is required to gazette the process for determining when a Full Court should be assembled. These recusal processes should also be available on the Courts' website,88 as the other matters requiring Gazette notices currently are.

The submissions we received in response to the Issues Paper were generally supportive of this proposal, and we are therefore inclined to recommend it be included as a requirement in a new Courts Bill.

We welcome any further submissions on this issue.

Law Commission Towards a New Courts Act – A Register of Judges’ Pecuniary Interests (NZLC IP21, 2011).

Courts of New Zealand < www.courtsofnz.govt.nz >.