Bateman v Nelson Yacht Club Inc HC Nelson CIV-2011-442-142

[2011] NZHC 344

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2011-442-142

UNDER  District Courts Act 1947

IN THE MATTER OF     Special leave to appeal the decision in the

District Court, Nelson

BETWEEN  KERRY BATEMAN Intending appellant

ANDNELSON YACHT CLUB INC Intended respondent

Hearing:         On the papers

Counsel:         Mr Bateman in person

BJM Nelson for Respondent

Judgment:      10 May 2011 at 10:30 AM

I direct the Registrar to endorse this judgment with a delivery time of 10.30am on the 10th day of May 2011.

JUDGMENT OF MACKENZIE J

[1]      Mr Bateman bought proceedings in the District Court at Nelson claiming that, as a member of the public, he has a right to use a boat rigging and car parking area and a boat launching slip way, situated on the Club’s premises held under lease from the Nelson City Council, for the purposes of access to the sea.  In a reserved judgment delivered on 20 October 2005, Judge Tuohy rejected Mr Bateman’s claim and gave judgment for the Club.

[2]      Mr Bateman had a right of appeal, as of right, against the judgment if that appeal had been commenced within 20 working days after the decision appealed

BATEMAN V NELSON YACHT CLUB INC HC NEL CIV-2011-442-142 10 May 2011

against was given, in accordance with r 20.4(2)(b) of the High Court Rules.  Because the present intended appeal was not brought within that time, an extension of time is required under r 20.4(3).   On 28 March 2011, Mr Bateman filed an application for special leave to appeal to this Court against that judgment.  He seeks an extension of time under r 20.4.

[3]      Mr Bateman’s  application  was  the  subject  of  a  telephone  conference  on

11 April 2011.  As the minute of that telephone conference records, I indicated to the parties  a  view  that  the  application  could  best  be  dealt  with  by  allowing  an opportunity for written submissions, following which I would make a decision on the papers on the basis of the written submissions.  The parties indicated their agreement with  that  proposal.    Submissions  have  now  been  filed  in  accordance  with  the timetable fixed in that minute and I am in a position to deliver this judgment.

[4]      An extension of time is an indulgence and is a matter for the discretion of the Court.  A proper explanation of the circumstances of the failure to appeal in time is required.  The length of the delay is a relevant consideration.  In his application for special leave, Mr Bateman provides a justification for his delay in lodging an appeal as follows:

It  was  some  months  after  the  case  closed  that  I  was  made  aware  of Judge Tuohy’s personal interest and involvement.  I laid a complaint with the Judicial Complaints Commissioner and after some time was advised that my sole source of redress was to appeal his decision.  Judge Tuohy had awarded in excess of $6000 in costs against me.   As an age beneficiary with no property or income, I could not consider an expensive appeal, especially without further evidence.  The passage of the Marine and Coastal Act has, however, changed completely the complexion of the case.

[5]      Mr Bateman, in his memorandum which had been filed in advance of the telephone conference, has elaborated upon this by stating in his submission there was a  close  relationship  between  the  Nelson  City  Council,  represented  by  Fletcher Vautier Moore (of which he says that Judge Tuohy had been a partner at one time), which was the successor of the Nelson Harbour Board (which had been represented by Glasgow Harley), and the Nelson Yacht Club, which was represented by Glasgow Harley.   In response, Mr Nelson states that while it is true that the Nelson City Council  solicitors  are  Fletcher  Vautier  Moore  and  that  at  one  time  the  Nelson

Harbour Board’s solicitors were Fell & Harley (now part of Glasgow Harley), the Nelson Harbour Board ceased to exist some thirty years ago and its successor Port Nelson Limited has since 1993 been represented by another law firm.  Further, there is not the remotest possibility that a fair minded properly informed lay observer would have a reasonable apprehension that the Judge might not bring an impartial mind  to  the  resolution  of  the  question  the  Judge  was  required  to  decide  in Mr Bateman’s proceedings.

[6]      The Courts of New Zealand website records that Judge Tuohy was appointed a District Court Judge in September 1997.  Judge Tuohy’s judgment records that the Club’s lease is dated October 2000 and is for a period of 10 years from 1 July 1995. While it is not specifically recorded in the judgment, I assume that Fletcher Vautier Moore acted for the City Council in relation to that lease.  Even if he was a member of that firm prior to his appointment (a matter on which I have no information), that fact would, not of itself, not give rise to a reasonable apprehension of bias.  Where a judge  hears  a  matter  involving  a  firm  of  which  he  was  a  member  prior  to appointment, the mere fact of the judge’s previous relationship with that firm will not in  itself  create a  reasonable apprehension  of bias.    Applying the  principles enunciated  by  the  Supreme  Court  in  Saxmere  Company  Ltd  v  Wool  Board

Disestablishment Company Ltd[1] there must be some logical connection between that

relationship and its capacity to influence a judge to deviate from the course of deciding the case on its merits.  There is no tenable logical connection in this case. There  is  no  suggestion  that  Judge Tuohy  had  any  personal  involvement  in  the carrying out by Fletcher Vautier Moore of the City Council’s instructions concerning the lease.  Further, Mr Bateman’s claim was against Nelson Yacht Club as lessee.  It did not involve Nelson City Council as lessor.  There can be no possible basis for a suggestion that Judge Tuohy might have been influenced in the determination of a dispute  between  Mr Bateman  and  the  lessee  by  any  previous  involvement  as  a partner in the firm of solicitors who acted for the lessor.

[1] Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35, at [4].

[7]      Mr Bateman’s further assertion that there is a close and mutually beneficial

relationship between the firm of Fletcher Vautier Moore and Glasgow Harley, the solicitors for the Yacht Club, is equally untenable.  Mr Bateman asserts that the two

law firms would have developed a close and mutually beneficial relationship as a consequence of the transfer of assets from the former Nelson Harbour Board to the Nelson City Council and the ongoing developments in Nelson Haven.   The proposition implicit in that submission is that some relationship affecting the independence of the two firms in representing their respective clients may have arisen from the circumstances of that transaction.   That proposition is completely without foundation.   Solicitors will have numerous dealings with each other, in acting for their respective clients.   Each firm must act in the best interests of its client.  That is the essence of legal practice.  It does not give rise to a real possibility of some improper relationship between the respective firms.

[8]      Accordingly, I have reached the very firm view that nothing in the matters raised   by   Mr Bateman   provides   any   foundation   whatever   for   a   reasonable apprehension by a fair minded lay observer that there was a real and not remote possibility  that  Judge Tuohy  might  not  have  brought  an  impartial  mind  to  the resolution of the question he was required to decide.

[9]      Mr Bateman advises that he made a complaint to the Judicial Complaints Commissioner and after some time was advised that his sole source of redress was to appeal the decision.  That complaint, and the response, might possibly have justified an extension of time for appeal, if application had been made very promptly after receiving that advice.  It cannot justify an extension more than five years after the judgment.

[10]     Counsel  for  Nelson  Yacht  Club  has  also  advised  that  an  appeal  against Judge Tuohy’s   decision   was   lodged   in   December 2005   but   withdrawn   in January 2006.  That in itself would provide an insuperable obstacle to Mr Bateman’s present application for an extension of time.   Mr Bateman asserts that he has no recall of such an appeal but that if it was lodged he “would have been quickly persuaded  to  withdraw  on  financial  grounds.    At  the  time  I  was  unaware  of Judge Tuohy’s  personal  involvement.”    In  the  circumstances,  and  because  any allegation of an apprehension of bias on the part of a judge is a serious matter, I have preferred to base my decision on the grounds that I have addressed.  For the reasons I

have  given,  there  is  no  evidential  foundation  for  Mr Bateman’s  allegation  that

Judge Tuohy had a personal involvement.

[11]     There is no sufficient explanation for the delay in applying for extension of time, and the grounds upon which Mr Bateman seeks to challenge the judgment are entirely without foundation. An extension of time for appealing is refused.

[12]     The intended respondent is entitled to costs on the present application, on a

2B basis.

Mr Bateman, PO Box 8022, Nelson. Solicitors:            Glasgow Harley, Nelson for Respondent

“A D MacKenzie J”