Source: Radio New Zealand
High court judge Anne Hinton wants privacy but her family seeks a public hearing. ikiryo/123RF
Lawyers for a high court judge say her family’s dispute over a bach should be dealt with in private arbitration rather than public court, in part because of her judicial position.
Some of her family members disagree.
Both sides voiced their arguments for and against an arbitration order in the Court of Appeal on Wednesday. The decision was reserved.
Court documents show 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.
Gatfield and Pearson said Hinton’s sale of her share breached the trust, and took their case to the High Court.
Hinton applied to have it referred to mediation, and if that was unsuccessful, to arbitration. Mediation results in a collaborative settlement, while arbitration relies on an independent arbitrator to make a decision.
Arbitration is common when both parties agree to it – but in this case, Gatfield and Pearson did not want it. When Associate Judge Dale Lester ordered it, they appealed that decision.
Their lawyer, Matanuku Mahuika, told the Court of Appeal Lester’s ruling was “coercive orders”.
Judge wants privacy, family seeks public hearing
Court documents show Hinton wanted arbitration because it was faster and cheaper than going through the courts – and private.
In their submissions to the High Court, her lawyers said some of the allegations against Hinton called her credibility into question.
“It is not in the interests of justice that these credibility issues be assessed by one of the applicant’s work colleagues if the matter is not resolved by mediation.”
They argued any judge hearing Hinton’s case 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.
Hinton’s lawyers also said it was clear that the matters were “intensely personal” so “the proceeding cries out for private rather than public resolution.”
In the Court of Appeal on Wednesday, Justice Francis Cooke said the fact that the respondent was a high court judge was the unavoidable “elephant in the room”.
But Hinton’s lawyer Andrew Butler KC said: “she is a citizen and is entitled in the usual way to draw on the law.”
“It’s a family dispute, judges have families,” he said, adding that there was no reason her case would be treated differently.
Butler said the court’s job was to decide where the dispute was best resolved.
Harry Waalkens, who represented the two sisters Hinton sold to, said his clients had the most at stake, and said the situation was “as acrimonious as it could be”.
Solving it in arbitration was the most pragmatic approach, and there was “no public interest at all” in it being heard in court, he said.
Lawyers for Hinton’s sister, Gillian Gatfield, and niece, Emma Pearson, disagreed.
Matanuku Mahuika said “significant weight” was placed on Hinton’s role as a judge, in her request for arbitration.
“That’s not appropriate, that should not be a ground for going through a private process.”
He urged the judges to be mindful of open justice and warned them against being seen to give preference to a fellow judge.
Granting arbitration risked the appearance of privilege because of her position, Mahuika said.
No precedent for forced arbitration – lawyer
The law gives courts the power to order arbitration.
But Mahuika told the court it needed to be careful in exercising that power when arbitration was opposed, as it was in this case.
Arbitration had never been ordered – as opposed to agreed to – in a trust dispute, said Mahuika.
“There is no precedent.”
Justice Cooke questioned whether it was in everyone’s best interest to have it heard in a confidential setting, but Mahuika said his clients did not want that, and their wishes should be “significant”.
Butler said this sort of acrimonious dispute was “well-suited” to arbitration.
Much of the argument about whether the case should be referred to arbitration centred around the “validity” of the trust.
The concept of validity “is understood to refer to the formal steps of the trust being created,” court documents said.
Arbitration could not be ordered for a dispute about the validity of the trust.
Mahuika said the dispute was about the trust’s validity – but Butler disagreed.
Justice Hinton
Hinton became a High Court judge in 2015, and when she retired in 2023 she took up a part-time role as an acting High Court judge.
She was appointed as a full-time acting Court of Appeal judge from July 2024 until June 2025.
The Ministry of Justice said she had not been sitting on hearings since then, but the final judgement she was part of is expected to be delivered this week.
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand