Ruling affirms judicial conduct commissioner’s finding favouring judges in recall proceedings
In proceedings arising from a claim that a law firm provided negligent legal work, the New Zealand Supreme Court denied leave to appeal against the judicial conduct commissioner’s decision in favour of the judges who ruled on two recall applications.
The case was Kaye v Judicial Conduct Commissioner [2026] NZSC 161. The Kayes commenced the claim against the firm, which the High Court dismissed.
The Kayes repeatedly attempted to challenge the High Court decision. They brought two applications to recall the Supreme Court’s 2021 ruling declining to extend the time in which they could apply for leave to appeal. In 2024, the Supreme Court denied both recall applications.
In a complaint filed with the judicial conduct commissioner, the Kayes asserted that the judges who dealt with the recall applications failed to acknowledge the significance of new evidence they had provided.
The commissioner dismissed the complaint as one beyond his jurisdiction under s 16(1)(a) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. In reaching this conclusion, he made the following findings:
Before the High Court, Mr Kaye applied to review the commissioner’s decision. He alleged that the commissioner erred in failing to provide reasons for his decision and in finding that he lacked jurisdiction.
In 2025, the High Court recognised that the commissioner needed to give reasons for his decision. However, the High Court confirmed that the commissioner provided reasons and correctly comprehended and applied the jurisdictional bar.
Earlier this year, the Court of Appeal of New Zealand likewise rejected Mr Kaye’s arguments.
In his proposed appeal, Mr Kaye again reprised the arguments he had raised before the High Court of New Zealand. He requested a court-ordered mediation and a fresh assessment of damages resulting from the firm’s alleged negligence.
According to his submissions, the commissioner said he abided the Supreme Court decision, as he did in the lower court proceedings.
The Supreme Court declined leave to appeal. The Supreme Court did not order costs since the respondent commissioner took no substantial steps in this proceeding.
Upon considering Mr Kaye’s requested relief, the Supreme Court ruled that the proposed appeal aimed to challenge its prior decisions collaterally and to reopen the claim against the firm, thus amounting to an abuse of process.
Even if Mr Kaye limited his proposed appeal to assailing the commissioner’s decision, the Supreme Court explained that the proposed appeal would still fail to meet the criteria for issuing leave.
The Supreme Court added that the matters identified were not evidential and exclusively involved legal reasoning.
Lastly, the Supreme Court found no apparent miscarriage of justice in the commissioner’s finding and no matter of general or public importance arising in the circumstances.
In striking out an application for leave to appeal in a habeas corpus matter, the Supreme Court of New Zealand issued a 2 October 2026 decision finding no reason for a firm that was not a party to the previous proceedings to be a party before it.
On 7 May 2026, the Supreme Court denied an application for leave to appeal sought by an investor who sued a firm of solicitors for professional negligence through the allegedly flawed advice it gave in connection with a real estate transaction.
Enjoy this story? Read the latest litigation and dispute resolution news on the main page!
