If you ever wondered how the LawFuel editorial team might sanitise a legal soap opera, consider this your briefing note.
A sitting (well “former” but still pretty judge-y) High Court judge has successfully steered a squabble over her share in the family bach away from the glaring lights of open court and into the subdued world of arbitration.
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In 2022, Justice Anne Hinton, appointed to the High Court in 2014, sold her share of the holiday home to two of her four sisters. Seems simple until one sister, Gillian Gatfield, and her daughter, Emma Pearson (beneficiaries of their late mother’s share), pointed out an alleged promise by Hinton to transfer her interest to them. That promise, they said, should have been honoured.
Cue the litigation. Gatfield and Pearson took the matter to the High Court and for lawyers watching from the bench rail or the back pews: instead of a straight judicial process, Hinton’s camp applied to have the dispute sent to arbitration — over the objection of the other side.
Their logic was pragmatism with a twist of optics. Arbitration is quicker, cheaper, and private — all attractive when you’re litigating a bitter family dispute and one side is a High Court jurist. Hinton’s lawyers argued that any judge faced with this case might either be seen to favour a colleague or risk undermining a fellow jurist’s credibility if they got it wrong.
Opposing counsel, led by Matanuku Mahuika of Kahui Legal, took the higher road and raised open justice like a flag on the foreshore. He warned against giving what could look like judicial privilege to a fellow judge and pointed out that forcing arbitration in a trust dispute — over someone’s objections — was uncharted territory.
Despite those concerns, the Court of Appeal agreed with the Associate Judge who first ordered the arbitration. The bench confirmed that the High Court has the statutory power to compel arbitration and even appoint an arbitrator, even absent an arbitration agreement.
They also saw nothing inherently inappropriate in doing so and noted that ADR was sensible “where strongly felt personal allegations are involved.”
So courts in New Zealand can order binding arbitration in trust and family property disputes even when a party doesn’t want it, and the fact that one party is a judge doesn’t remove that power — despite vigorous submissions about open justice optics.
If you thought “judicial conduct” only concerned sentencing remarks and bench demeanour, this case may nudge you to think about procedural access and ADR orders when personal relationships are entangled with public office.
