Source: Radio New Zealand
The case was taken to the High Court but had been referred to independent arbitration. (File photo) RNZ / Dan Cook
A High Court Judge has won the right to have a dispute over a family bach heard in private, rather than open court.
In 2022, Justice Anne Hinton sold her share of the bach to two of her four sisters – but her other sister, Gillian Gatfield and niece, Emma Pearson (who inherited her mother’s share) argued Hinton had, years earlier, promised to transfer her share to them.
They took their case to the High Court, but Hinton successfully applied to have it referred to independent arbitration.
The plaintiffs appealed the arbitration referral in November – but the Court of Appeal dismissed that on Thursday.
Hinton wanted arbitration because it was faster and cheaper than going through the courts – and private.
Her lawyers argued any judge hearing Hinton’s case in court would be put in a difficult position: either risking the perception of favouring a colleague, or ruling against her which would effectively question her credibility.
But Gatfield and Pearson disagreed.
Lawyer Matanuku Mahuika said “significant weight” was placed on Hinton’s role as a judge in her request for arbitration, which was “not appropriate”.
He urged the judges to be mindful of open justice and warned them against being seen to give preference to a fellow judge.
Mahuika also pointed out arbitration had never been ordered – as opposed to agreed to – in a trust dispute.
But in Thursday’s decision, the judges said the Associate Judge who ordered the arbitration was following the correct procedure.
“We consider that the court has power to order that an arbitration take place and to appoint an arbitrator, even when there is no agreement to arbitrate.
“We also consider there is nothing inherently inappropriate in doing so.”
The Judges said it was “unnecessary” to explicitly address all the matters Gatfield and Pearson’s lawyers raised as reasons against private arbitration.
“We agree with the decision made by the High Court,” their judgement said.
Mediation and arbitration were appropriate options in a case involving “strongly felt personal allegations”, it said.
Sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.
– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand