A judge with potential information about events at a New Zealand First function at an exclusive Auckland club -which left another judge “fighting for her judicial career” - is refusing to engage with the special counsel, a panel hearing has heard.

And it’s claimed senior members of the legal fraternity may be unwilling to co-operate with him “as they see him as persecuting one of their own”, David Jones KC said today.

Judge David McNaughton was seated at a table at the Northern Club in November 2024 with several other judges and their partners, including District Court Judge Ema Aitken.

Judge Aitken is now facing a Judicial Conduct Panel hearing over her alleged behaviour that night amid claims she shouted at NZ First leader Winston Peters and called him a liar when she overheard comments about tikanga Māori being taught in law schools.

Judge Aitken denies yelling at the then Deputy Prime Minister and says she did not recognise him or realise it was a political event.

The panel is investigating those events and whether Judge Aitken’s actions crossed a line. It will call five witnesses who were at the Northern Club, including NZ First MP Casey Costello, before deciding whether the judge’s conduct justified consideration of her removal from office.

Special counsel Tim Stephens said several high-profile legal figures were seated with Judge Aitken that night, including Michael Reed KC, and three other judges.

Stephens said they included Judge McNaughton and Judge Allison Sinclair, both of whom had provided “letters of support with factual accounts” of events that night to the Judicial Commissioner.

Stephens said he had sought statements given by people who were at the table, as they may have information about what Judge Aitken knew about the nature of the NZ First function and the speaker.

“It does seem that some of these judges and their partners may have relevant evidence to give,” Stephens said.

“One of them in my submission, Judge McNaughton, does but is not prepared to engage.

“He doesn’t want to talk to me but will talk to the panel.”

The hearing heard that Judge David McNaughton is unwilling to engage with the special counsel in the case. Photo / RNZ, Claire Eastham-Farrelly

Stephens asked the panel members whether they would consider “communicating with His Honour directly” if they wished him to provide evidence.

“I don’t think His Honour would require a summons.

“There will be some matters where I may wish to challenge what His Honour is saying.”

Jones responded that his client had no problem with her colleagues that night being called to address the panel.

“It seems to be that there is some potential floating of an idea that they’ve been spoken to and Judge [Aitken] doesn’t want them to give evidence, and that simply hasn’t happened.

“I suspect they don’t want to co-operate with special counsel because they see him as persecuting one of their own.”

When questioned about this comment by lead panel member, retired Court of Appeal Judge Brendan Brown KC, Jones replied, “I’m simply postulating how they may see special counsel’s role”.

Jones said the events of that night had been “blown out of proportion” and become highly politicised.

He said his client was a highly respected judicial figure with an exemplary record. She was before the panel due to a 30-second interaction on a Friday night which now threatened to end her career.

“She says that’s absurd.”

The incident occurred at Auckland's Northern Club in November 2024. Photo / Meg Liptrot

Jones claimed Judge Aitken overheard an “untruth” as she returned from the bathroom and responded to the comment, but was not aware it was a political function or that the speaker was the country’s Deputy Prime Minister.

“Why is she fighting this? Because she’s a judge of principle and integrity, and she is not going to resign over something she did not do. That is the reason we are here.”

The incident had become overly political and subject to a “media circus”, Jones said.

He questioned whether his client would be subject to a fair process if the panel found her conduct justified removal and referred the matter to acting Attorney-General Paul Goldsmith for an ultimate decision.

“It’s election year,” Jones told the hearing today, adding that coalition negotiations would soon be underway.

“And the Attorney-General, if he gets a loaded gun from the panel, what considerations will come into play?”

Two functions at the Northern Club

There were two functions at the Northern Club on November 22, 2024.

One was for judges to mark Judge Aitken’s resignation of her warrant and the retirement of two District Court judges. The other was a NZ First fundraiser.

NZ First’s account – which was included in a report prepared by the Northern Club – is that as the NZ First leader spoke, Judge Aitken tried to enter the room and shouted; “He’s lying! How can you let him say that?”.

It is contended that the judge continued to shout and make a scene, saying there was a roomful of judges next door who would be interested in these comments.

But Judge Aitken has a different recollection.

NZ First leader Winston Peters was speaking at the Northern Club when the incident happened in November 2024. Photo / Mark Mitchell

In a letter to the Judicial Commissioner, provided to NZME, the judge gave her account of what happened that night, saying while she was returning from the toilet, she took a wrong turn and inadvertently walked past the NZ First function.

While passing the room, she heard a snippet of a speech from a male speaker saying something along the lines of; “They’re now teaching in law school that tikanga Māori law overrides the Westminster system”.

She said she was surprised and taken aback as she wasn’t expecting to hear the word tikanga at what she assumed was a social function.

“The statement was incorrect to me and mischaracterised the important role of tikanga for lawyers and judges in the District Court processes,” she said in her statement.

‘That’s not true’

As she walked past, she said, she mouthed to a woman seated at a table near the door, who looked familiar; “that’s not true”. She said that would have been inaudible. She later recognised the woman as NZ First MP Casey Costello.

She said she made a comment disagreeing with the speaker, reportedly, “He’s lying, how can you let him say that?”.

The judge said no one at the table with Costello, which she estimated included at least six others, turned and responded to her comment.

She denied shouting and said she was speaking in a normal voice.

The judge said she was quickly approached by a man and a woman, who walked her back down to her function, which was in the room next door.

Judge Aitken said as she was being guided back she commented there was a room full of judges who might have a different view to what the speaker was saying.

She said that was only to illustrate that there was a group of informed members of the community who might hold a differing view from the one expressed by the speaker.

She said it was only at this point that she looked back and realised the speaker was Peters and the woman she’d seen sitting at the table was Costello.

“I didn’t know who the speaker was, but I did believe the speaker’s comments went a step too far,” she said.

She also denied entering the room, saying she made the comment in the foyer as she walked past.

“It did not occur to me at the time that my comments or actions might have crossed the line between the Executive and the Judiciary. The situation was entirely unexpected and perplexing, but at the same time I did not see it as anything more than that.”

Media reports of the night have suggested Judge Aitken’s comments and the actions of her partner, intensive care specialist Galler, and a senior lawyer, Michael Reed, KC, were part of a “rolling fracas”.

Galler is alleged to have yelled at Peters and cornered Costello about the repealing of the smoke-free legislation. Galler has since apologised for his actions.

Meanwhile, Reed is accused of filming on his phone, which was against the rules.

Judge Aitken has said the event didn’t reach the magnitude as described by NZ First.

Lane Nichols is Auckland desk editor for the New Zealand Herald with more than 20 years’ experience in the industry.