Bligh v Earthquake Commission

[2017] NZHC 1900

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV-2013-409-001333

[2017] NZHC 1900

BETWEEN

DEREK RICKY BLIGH

Plaintiff

AND

THE EARTHQUAKE COMMISSION

First Defendant

AND

IAG NEW ZEALAND LIMITED

Second Defendant

Hearing:

16 May 2017

Appearances:

R J Lynn for Plaintiff

N S Wood and J W Upson for First Defendant P M Smith for Second Defendant
J Moss for Claims Resolution Service Limited P J Napier for Grant Shand

Judgment:

10 August 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]                 Counsel for a non-party, Grant Shand, requests that I recuse myself from hearing non-party cost applications brought against him.

[2]                 The application is made on the basis of comments I am said to have made during a case management telephone conference on 28 June, phrased by counsel in the following terms, though with an acknowledgement that they are reproduced to the best of counsels’ recollection:

(a)“The case clearly was not properly prepared”.

(b)“A key witness was visiting the property for the first time, which is no way to run a case.”

BLIGH v EARTHQUAKE COMMISSION [2017] NZHC 1900 [10 August 2017]

[3]                 In addition counsel refers to the fact that Mr Shand has made a complaint in respect of certain matters, to the Judicial Conduct Commissioner. Counsel says that taking the comments and the complaint together, a fair-minded lay observer might reasonably apprehend that there is a real and not remote possibility that I might not bring an impartial mind to the resolution of the question I am required to decide.

[4]                 In this respect counsel refers to the following passage from Saxmere Company Limited v Wool Board Disestablishment Company Limited.¹ The passage quoted and relied upon by counsel is taken from para 1 of the headnote in the report.

“Subject to waiver and necessity, a Judge was disqualified if a fair-minded lay observer might reasonably apprehend that there was a real and not remote possibility that the Judge might not bring an impartial mind to the resolution of the question the Judge was required to decide. There was to be no attempt to predict or inquire into the actual thought processes of the Judge. Rather, it was necessary first to identify what it was said might lead a Judge to decide other than on its legal and factual merits and, secondly, to articulate the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.

[5]                 Counsel says that I made the comments relied on without having had the benefit of Mr Shand setting out his position and all his evidence. He says the comments appear to show that I have reached a conclusion as to failings with the way the case was conducted by Mr Shand. Counsel relies on a passage from Dominion Finance Group v Sade Developments Limited in which he says Whata J summed up the issue to be decided by the Court, when it has to decide whether costs should be awarded against a solicitor.²

“At its core, the jurisdiction is directed to ensuring that a solicitor displays a basic level of competence in the handling of a case and does not abuse the Court’s process …”

[6]                 Counsel says that my comments have a direct bearing on this issue as they relate to whether or not a basic level of competence was engaged in the handling of the case. Counsel says the comments appear to show a view has already been reached on this point, adverse to Mr Shand.

1 [2009] 1 NZLR 35 (SC).

2 CIV-2009-419-1556, 6 October 2011, Whata J at [32].

[7]                 Accordingly counsel says that a fair-minded lay observer might reasonably apprehend that there was a real possibility that I might not bring an impartial mind to the resolution of the question identified by Whata J.

[8]                 The request was referred by me to both the first and second defendants and each has advised that it will abide the decision of the Court.

Discussion

[9]                 Consideration of a request that a Judge recuse himself or herself from a case is a two-stage process. In the first stage it is necessary to identify what may lead to a reasonable apprehension by a fully informed observer that the Judge might decide the case other than on its merits. Counsel relies on the two factors referred to above. As to the first, I do not have either relevant notes or a recording of the telephone conference in which the comments are said to have been made. Counsel first raised this issue with me at a later point in the conversation when the matter was fresh in his mind and I have no reason to doubt his recollection. For present purposes, therefore, it is appropriate to accept that they were made, though I have no recollection of so doing. I therefore proceed to determine the application on the  basis that the comments were made.

[10]              The second ground raised by counsel is a complaint made by Mr Shand to the Judicial Conduct Commissioner. This complaint is extant. It does not specifically raise issues about the judgment I issued in this case on 16 May 2017, nor could it as consideration of a judgment is outside the jurisdiction of the Judicial Conduct Commissioner.³ Rather, Mr Shand refers to this judgment and other decisions I have made where he or members of his firm have been involved, which he considers establish a pattern of decisions contrary to the interests his firm has represented.

[11]              The second step is to decide whether there is a “logical and sufficient connection” between the identified circumstances, and the apprehension referred to in relation to the first issue.⁴ I do not consider that there is. After considering the

3      Section 8(2) Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

4      Saxmere Company Limited v Wool Board Disestablishment Company Limited (above); Saxmere Company Limited v Wool Board Disestablishment Company Limited, (No 2) 2009 NZSC 122.

submission made by counsel for Mr Shand in his memorandum I have made a decision that I will not recuse myself from hearing the application against Mr Shand, as requested, for the following reasons:

(a)The making of a complaint to the Judicial Conduct Commissioner does not of itself serve to disqualify a Judge from hearing a case involving the complainant.⁵

(b)The statements accorded to me were made in light of the knowledge I had of Mr Bligh’s case against EQC and IAG which was presented to the Court on the application by Mr Bligh to set aside a judgment entered against him by default. There is a comprehensive review of the facts presented to the Court in the judgment, and in the present context I need only refer to the following passage (Mr Ferguson and Mr Morris are employees of Mr Shand):

“In the days leading up to the trial there was a flurry of activity orchestrated by Mr Bligh’s then advisers (whether Mr Dwyer, Mr Staples, Mr Ferguson or Mr Morriss), apparently aimed at bolstering the evidence which had already been provided as directed by the Court. This included visits by builders, engineers from Terra in Christchurch, a quantity surveyor, Mr Kearney from Terra in Auckland, Mr Bligh’s then legal counsel and Mr Dwyer and Mr Csiba. Why this level activity was left to the last few days when Mr Bligh’s advisors had had four years to prepare the case, were under case management directions of the Court, and had been given deadlines in relation to finalisation of pleadings and provision of evidence, is a mystery and one which may need examination in another context. In the present context I refrain from making a stronger observation than that it would appear to be an entirely unsatisfactory way to prepare a significant case for trial. This activity, coupled with the adamantly held view of the four persons I have mentioned that Mr Bligh must settle the claim, suggests that in their judgment they had not obtained, even by the last week before trial, evidence which they thought could establish Mr Bligh’s claim on a balance of probabilities. That may well have been the position

…”

(c)On the application for non-party costs there will be an opportunity for evidence to be presented to show that notwithstanding the events which  are  described  in  the  above  passage,  and  elsewhere  in  the

5      Slavich v Attorney General, 2013 NZSC 130 at [6].

judgment of 16 May, the case was in fact properly prepared. There will also be an opportunity for evidence to be presented to the Court which shows that the observation attributed to me, that having a key witness (Mr Kearney) visit the property for the first time, is not in fact “no way to run a case”. Equally, of course, evidence may well be presented which suggests that the observation made in the above passage was right, or for that matter that other findings should be made altogether. I have an open mind to that prospect. The judgment was decided on the basis of the evidence before the Court at the time and the observations attributed to me were based on the judgment.

(d)The observations were also based on long experience in the conduct of civil litigation both as counsel and as a Judge of this Court. Every Judge of this Court has experience in litigation in those capacities and is entitled to bring to bear that experience in assessing the conduct of trials or other hearings which come before the Court. Views derived from that experience, however, are subject to alteration in light of evidence adduced in a particular case. It is the role of a Judge to have an open mind notwithstanding views formed on the basis of professional experience.

(e)A fair-minded observer would not consider the comments in isolation, as they were made in the context of findings in a related judgment which were based on evidence then before the Court. Seen in that context it is my view that a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide. Rather, that observer would see the comments as based on evidence already before the Court, and neither arbitrary or baseless.

(f)Whilst resolution of the issues arising  on  the  application  against  Mr Shand may require consideration of the points referred to in the comments in question, these are most unlikely to be decisive. I do not yet have the benefit of written argument, from which the issues to be

determined will be clear, but the evidence before the Court on the earlier application raises a number of other issues, including possible conflict between Mr Shand’s terms of engagement and the Client Care rules, and possible breach of those rules. The connection between the comments and the issue to be decided is not, therefore, as close or direct as suggested.

(g)If the lay observer were also aware of the fact that Mr Shand has an extant complaint against me, I do not consider the assessment would alter. The Court will be required to make a ruling on costs which  takes into account material yet to be put before the Court in support of and opposition to the application for non-party costs.  The complaint is not a matter of any relevance to that. It does not in my opinion add materially to the view a fair-minded lay observer would reach in relation to my impartiality on the issues that fall to be decided.

J G Matthews Associate Judge

Solicitors:

GCA Lawyers, Christchurch Duncan Cotterill, Auckland Chapman Tripp, Wellington Keegan Alexander, Auckland