By Catherine Hutton, Open Justice reporter of 
Auckland judge Ema Aitken and her partner Dr David Galler. Aitken has taken a judicial review challenging the decision to refer her to a Judicial Conduct Panel following an incident at the Northern Club last November. Photo: NZ Herald
A fleeting interaction between a District Court judge and political party staffers at an exclusive Auckland club has been hotly debated in court.
The interaction was so brief it was summarised in just three paragraphs of the Northern Club's report which examined events on 22 November.
There were two functions at the club that Friday night. One was for judges to mark Judge Ema Aitken's resignation of her warrant and the retirement of two District Court judges. The other was a NZ First fundraiser.
The NZ First event was interrupted several times, but it was the first disruption, involving Aitken, that's taken two days of hearing time in the High Court at Wellington.
A wrong turn after a visit to the bathroom saw Aitken walking past a function room and catching a snippet of a speech that was being given inside.
NZ First says the judge approached a staffer in the foyer and in a loud voice said, "He's lying, how can you let him say that?"
Passing the party signage at the door, it's alleged the judge attempted to enter the room, while continuing to shout and make a scene as she was asked to return to the foyer.
However, Aitken's recollection is that she made two comments to a single guest seated near the door of the function, after the speaker referenced the teaching of tikanga at law schools. The judge said she whispered the first and spoke in a normal voice while making the second.
She denies entering the room, saying she made her comments while walking through a foyer back to her function.
In a 10-page response to the Judicial Conduct Commissioner the judge recalls saying "that's not true", but can't exactly recall her exact words other than what the speaker was saying was not true and misinformation.
She said she thought the reference to tikanga mischaracterised the important role of tikanga for lawyers and District Court judges.
On both accounts, the judge ended up walking back to her function with NZ First members and made a comment about a roomful of judges being interested in the speaker's views. Both accept there was an incident that night.
While the incident was momentary and accidental, it's had continued ramifications for Aitken who apologised to NZ First for her disruption, acknowledging her behaviour was "rude, uncalled for and inappropriate".
The Attorney-General Judith Collins referred the matter to the Judicial Conduct Commissioner, who subsequently recommended a Judicial Conduct Panel be established to investigate Aitken's alleged offending.
The three-person panel, comprising two judges and a layperson, has the power to order the removal of a judge.
Challenge to commissioner's decision
It's that decision which Aitken is now challenging by judicial review.
Aitken argues the commissioner failed to give sufficient reasons for her referral to the panel or to carry out sufficient inquiries before recommending the making be referred to a panel. She says it's also not clear what the scope of the panel's work with her conduct was measured against.
Aitken's lawyer Paul Risworth, KC, told the court it was inconceivable that the commissioner could reach his decision without articulating what the standard was.
He also suggested more should have been done to ascertain what happened that night, including forwarding the judge's response to the commissioner to NZ First for their comment.
But counsel assisting the court, Tim Stephens KC, said it wasn't the commissioner's job to set the standard and in this case, the standard was obvious. The commissioner's role was to conduct a "preliminary investigation."
Essentially this was a dispute between parties about what happened that night. That wasn't the type of dispute the commissioner could, or should, resolve, he said.
The panel was the fact-finder, not the commissioner, he said.
"The commissioner has no compulsory powers to acquire information, summon witnesses, or require people to assist them. That is because it is not their function to make factual findings," he said.
"It's clear the commissioner understood the law in this regard that factual matters are not for him to determine."
Turning to the question of whether the judge knowingly interrupted a political event. Aitken said she didn't know it was a party function or that Peters was speaking. She only realised it was the NZ First leader as she turned and looked back while walking down the corridor.
At the time she said it didn't occur that her actions might have crossed a line, although in hindsight she realises it would have been better to say nothing.
"I fully understand and deeply respect the importance of judicial independence and the necessity of maintaining comity between the judiciary, the executive and the legislature," she told the commissioner.
Rishworth said NZ First's account didn't include any allegations of political assertion, or if it did, it wasn't explained.
If any political aspect was removed, the only thing left was a rude intrusion into a dinner.
But Stephens said on NZ First's account the judge had entered a clearly marked political function and loudly accused the Deputy Prime Minister of lying, while implying other judges would agree with her.
"The alleged conduct involves a breach of the constitutional convention that judges stay clear of the political fray. This convention exists to protect damage to judicial independence,' he said.
Stephens said given the differing accounts of what happened that night and the seriousness of the allegations, the commissioner had correctly referred it to the panel.
Aitken is asking the court to quash the commissioner's decision and refer the case back to him so he can start again.
Justice Andru Isac has reserved his decision.
- This story was first published by New Zealand Herald
