Body Corporate 81012 v Memelink
[2023] NZHC 835
•19 April 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-419
[2023] NZHC 835
BETWEEN BODY CORPORATE 81012, 68792 AND
378945
PlaintiffAND
HARRY MEMELINK AND CISCA JOHNETTE FORSTER
Defendants
On the papers: Counsel:
H Memelink in person
Judgment:
19 April 2023
JUDGMENT OF CHURCHMAN J
[Recusal Application]
Introduction
[1] The applicant, Mr Memelink, has applied for an order that I be recused from presiding over proceedings involving himself as well as any proceedings involving the following additional parties:
(a)Ms Cisca Johnette Forster;
(b)Mr Roy William Bassett-Burr;
(c)The Link Trust No 1 (in receivership);
(d)Lynx Trustees Ltd (in liquidation);
(e)Cudby and Meade Ltd (in liquidation);
BODY CORPORATE 81012 & ORS v MEMELINK & ANOR (RECUSAL APPLICATION) [2023] NZHC 835
[19 April 2023]
(f)Link Technology 2000 Ltd (in liquidation); and
(g)R Cameron and Shortts Engineering & Plumbing Supplies Ltd (in liquidation).
[2] The application is not in respect of any particular proceedings currently underway but rather any potential proceedings that he, or the persons or entities listed in paragraph [1] above, might be involved in in the future.
Why does Mr Memelink want me to recuse myself?
[3] Mr Memelink alleges that I am biased against him and therefore not impartial. He also complains that I bully him or his lawyer at Court and that I am neither competent nor diligent. He further claims that what he refers to as my dismissal of his and his counsel’s pleadings has been unwarranted. He wants Grice J to be allocated to preside over his future cases involving him and his associates listed above.
[4] In support of his application, he has filed an affidavit of 28 March 2023. The tenor of the affidavit is that I treat him differently to other Judges and am biased against him and anyone associated with him. He suggests no reason why that should be so. He makes many sweeping allegations, most of which he provides little detail of.
[5] To the extent that he provides any detail in support of his allegations he focuses on three groups of cases: 2016 proceedings (CIV-2016-485-782) between Harbour City Construction 2012 Ltd and Link Technology 2000 Ltd; 2019 proceedings (CIV-2019-485-315) between Mr Haines and himself, which also involved his brother in law Mr Bassett-Burr; and proceedings heard in 2022 relating to the appointment of receivers of the Link Trust No 1.1 It is therefore necessary to begin by briefly setting out the facts of these cases.
1 Body Corporate 81012 v Memelink [2022] NZHC 1244 [31 May 2022 decision]; and Body Corporate 81012 v Memelink [2022] NZHC 3307.
The 2016 proceedings
[6] Mr Memelink makes some very specific claims in relation to the 2016 proceedings. He asserts that his then counsel, Mr Nicholls, had “made some mistakes” and that I, “in no uncertain terms, remonstrated [sic] him for his admission”. He alleges that I treated Mr Nicholls harshly.
[7]These allegations are completely fictitious.
[8] Mr Memelink was involved in three related hearings involving Link Technology 2000 Ltd. Mr Nicholls represented him in the first two of those proceedings, Mr Haines in the third. They were heard in 2016, 2017 and 2018 respectively. The first was heard in December of 2016. Smith AJ was the presiding judge. He gave judgment against Mr Memelink’s company.2
[9] That led to a further hearing in 2017 to quantify the damages Mr Memelink’s company had to pay. That was heard by Venning J in October 2017. He gave judgment against the company the same month.3
[10] The third related to a counterclaim by Mr Memelink’s company. It was heard and the counterclaim dismissed in April 2018.4 The presiding Judge was Collins J.
[11] As I was not the presiding Judge in either of the two cases where Mr Nicholls acted for Mr Memelink’s company (or, indeed, any other case involving Mr Nicholls and Mr Memelink or his companies), I could not have treated Mr Nicholls in the manner said by Mr Memelink to be evidence of bias.
The 2019 proceedings
[12] These proceedings relate to some statutory demands that had been improperly served on a Mr Haines and a costs award I made against a non-party (Mr Memelink’s brother-in-law, Mr Bassett-Burr) who had actually served the invalid demands.5
2 Harbour City Construction 2012 Ltd v Link Technology 2000 Ltd [2017] NZHC 451.
3 Harbour City Construction 2012 Ltd v Link Technology 2000 Ltd [2017] NZHC 2480.
4 Harbour City Construction 2012 Ltd v Link Technology 2000 Ltd [2018] NZHC 686.
5 Haines v Memelink [2019] NZHC 2169.
Mr Memelink appealed the decision to the Court of Appeal, which substituted Mr Bassett-Burr as the appellant and found that Mr Bassett-Burr had not been notified of the intention to seek costs against him in the appropriate manner.6 Mr Haines appealed that decision to the Supreme Court, which, in its leave decision, noted there was an argument as to whether the service had in fact been achieved, but concluded that the threshold for granting leave had not been met.7
[13] The application for non-party costs was subsequently validly served on Mr Bassett-Burr and, after a defended hearing, I awarded costs against him.8 Mr Bassett-Burr sought leave to appeal that decision to the Court of Appeal. This was declined, on the basis of delay on the part of Mr Bassett-Burr and the fact the issues had already been determined.9
[14] The comments in Mr Memelink’s affidavit about this series of cases are essentially factual allegations that have been advanced by Mr Memelink in the various hearings before the different courts and are dealt with in the decisions in those cases. Mr Memelink has exercised his rights of appeal, and, in respect of the factual matters he referred to, that is the end of the matter.
[15] The one new allegation that has not already been ventilated before the Courts is that I failed to allow Mr Memelink to speak for his “full allotted time” and “shut him down” when he “started discussing the lawyers Code of Conduct”. Mr Memelink has, on a number of occasions before me, represented himself or his interests. He not infrequently becomes fixated about issues that are irrelevant or repeats issues that he has already fully addressed. This wastes the Court’s time. He clearly has a deep personal animosity towards Mr Haines and takes every opportunity to disparage Mr Haines, irrespective of whether his comments about Mr Haines’ character have any relevance to the issues before the Court. This also wastes the Court’s time. I have, from time to time, had cause to require Mr Memelink to limit his comments to issues that are relevant to the matters the Court has to decide in the case before it. That is not evidence of bias.
6 Bassett-Burr v BPE Trustees (No 1) Ltd [2020] NZCA 457.
7 Haines v Memelink [2021] NZSC 14 at [14].
8 Haines v Memelink [2022] NZHC 2966.
9 Haines v Memelink [2022] NZHC 3402.
The 2022 proceedings
[16] Three different sets of proceedings were heard at the same time: Body Corporate 81012 v Memelink (CIV-2021-485-419) (the receivership proceeding); Lynx Trustees Ltd (in liq) v Memelink (CIV-2020-485-374) (the liquidation proceedings); and Official Assignee v Memelink (CIV-2020-485-462) (the bankruptcy proceeding). As is often the case with hearings involving Mr Memelink, his lawyer attempted to relitigate issues that had been resolved in other cases or ran meritless arguments.
[17] Mr Memelink and/or his interests were unsuccessful in each of the proceedings. The most significant of the proceedings was the appointment of receivers to the Link Trust (No 1).10 Mr Memelink has unsuccessfully attempted to stay the implementation of that decision.11 He continues to attempt to pursue appeal rights.12
[18] Mr Memelink’s specific complaint about this decision is as to the opening wording of the decision, which said:
[1] This decision is yet another chapter in the ongoing saga of litigation involving Harry Memelink, the Link Trust (No 1) (the Trust), Lynx Trustees Limited ( in liq) (Lynx), and others with whom he and those entities interact
…
[19] He alleges that this set a “negative tone” and infers that this is evidence of bias. I do not accept that. The statement is factually correct. Mr Memelink’s argumentative nature and track record in litigating many baseless claims is well-documented. Indeed, the decision itself sets out verbatim a number of comments by other Judges in earlier related litigation as to Mr Memelink’s proclivity to engage in meritless litigation. Those comments speak for themselves. Far from being evidence of bias, the first paragraph in the decision merely records the self-evident.
[20] The balance of the matters raised by Mr Memelink are matters going to the reasoning in the decision. They are matters that, so far, have not persuaded the Court
10 31 May 2022 decision, above n 1.
11 Memelink v Body Corporate 81012 [2022] NZCA 581.
12 See Official Assignee v Memelink HC Wellington CIV-2021-485-462, 21 March 2023 (Minute of Grice J).
of Appeal to interfere in the decision. They must be left to run their course by way of any further appeal Mr Memelink may choose to pursue.
[21] It is now appropriate to examine the application of the principles relating to recusal against the facts of these cases.
Principles applying to recusal
[22] The principles applying to recusal are well-settled.13 The High Court recusal guidelines are developed and published in accordance with s 171(1) of the Senior Courts Act 2016 to assist Judges to decide if they should recuse themselves from a proceeding. The latest guidelines were published in June 2017.14
[23] The first general principle is that a Judge has an obligation to sit on any case allocated to them unless grounds for recusal exist.15 The High Court recusal guidelines state a Judge should recuse themselves “if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.”16 The standard for recusal is one of “real and not remote possibility”, rather than probability.17
[24] The two-step test for recusal adopted in the High Court recusal guidelines is taken from the Supreme Court’s decision in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1).18 First, an applicant seeking recusal must identify the circumstances that might lead the Judge to decide a case other than on its merits. Secondly, the applicant must establish a logical connection between those circumstances and the possibility that the Judge may decide the case otherwise than on its merits.
13 See for example Jones v New Zealand Bloodstock Finance and Leasing Ltd [2022] NZHC 93 at [13].
14 Justice G J Venning (Chief High Court Judge – Te Kaiwhakawā Matua) “High Court recusal guidelines” (12 June 2017) Courts of New Zealand < 1.1.
16 At 1.2.
17 At 1.3.
18 At 1.4, citing Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1) [2009] NZSC 72, [2010] 1 NZLR 35 at [4]. And see for example M v Attorney-General [2021] NZHC 1842 at [8]–[9].
[25] The question of recusal is for the Judge.19 If, after considering all relevant circumstances, there is doubt about whether there may properly be an appearance of bias, the High Court recusal guidelines advise it may be prudent for the Judge to decline to sit on a case.20
[26] In terms of recusal where a Judge has earlier expressed an opinion, the High Court recusal guidelines provide:
5.Recusal where opinions earlier expressed
5.1 A judge should consider recusing him or herself if the case concerns a matter upon which the judge has made public statements of firm opinion on the issue before the court.
5.2 An expression of opinion in an earlier case or in an earlier stage of a proceeding is not of itself a ground for recusal.
[27] In Vector Ltd v H Construction North Island Ltd (in rec and liq), Jagose J described the test for recusal in the following way:21
[15] To paraphrase this Court’s recusal guidelines’ test,22 the issue is if my connection with the case makes it a real possibility a fair-minded, fully- informed intelligent lay observer reasonably would apprehend I might not impartially try it, notwithstanding my oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.23
Discussion
[28] Mr Memelink has requested that I recuse myself from all future proceedings involving him and entities and parties connected to him. Such an application that a Judge should be asked to recuse themselves, not just in a specific case involving the applicant but from all future cases involving the applicant or people or entities connected with them, is novel.
[29] The reason Mr Memelink gives for this request is that since he has a number of active cases ongoing with the Court, the probability of my presiding over another
19 At 1.5.
20 At 1.5.5.
21 Vector Ltd v H Construction North Island Ltd (in rec and liq) [2020] NZHC 3266.
22 High Court recusal guidelines, above n 14, at 1.4; and see also Sisson v Canterbury District Law Society [2011] NZCA 55, [2011] NZAR 340 at [20]–[22].
23 Oaths and Declarations Act 1957, s 18.
of his matters again is therefore “highly likely”. He suggests that for me to recuse myself from all such future dealings would be best for me and for him.
[30] The High Court recusal guidelines do not appear to contemplate a Judge recusing themselves from all future cases concerning an applicant, let alone an application for recusal in advance involving a large group of individuals and entities who may be involved in as yet unascertained litigation. The fact that a particular litigant may have enjoyed very little success in litigation before a Judge is not a ground for the litigant being able to avoid appearing before that Judge again in any litigation that the litigant may choose to commence or defend in the future. What is needed is evidence of something that might cause a fair-minded observer to think that the Judge might not be able to bring an impartial mind to the task involved.
[31]As the Supreme Court has commented in Siemer v Heron:24
…there are strong institutional safeguards within the system. Following appointment, judges take an oath committing them to independence and impartiality in their judicial service … Judges are also accustomed, on a daily basis, to putting aside their views of litigants appearing before them that are not relevant to the issues … Their commitment to proper exercise of the judicial function and their experience in discharging that commitment equip judges to administer justice impartially, without being distracted by extraneous events such as the reactions of the parties to what they decide or do. This is so even where there has previously been an expression of strong concern by the litigant over what the judge has done such as by lodging a complaint or seeking recusal of the judge.
[32] The test is clear that for a Judge to recuse themselves, there must be some logical connection between the relationship and its capacity to influence the Judge to deviate from the course of deciding a case on its merits alone.25
[33] Judges must not recuse themselves “without sufficient cause” and an analysis of apparent bias “is to be assessed on a case-by-case basis.” 26
24 Siemer v Heron [2012] 1 NZLR 293 (SC).
25 High Court recusal guidelines, above n 14, at 2.1.
26 Vector Ltd v H Construction North Island Ltd (in rec and liq), above n 21, at [14], citing A (SC 106/2015) v R [2016] NZSC 31 at [16]; and KI Commercial Ltd v Christchurch City Council [2019] NZCA 645 at [10], citing Russell v Taxation Review Authority [2011] NZCA 158, [2011] NZAR 310 at [23], citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA).
[34] The application by Mr Memelink is not consistent with an obligation to approach an application for judicial recusal on the grounds of apparent bias “on a case- by-case basis”, to determine whether there is, in the terms of the test, “some logical connection” between whatever circumstances there are that are believed might lead the Judge to decide a case other than on its merits, and the possibility that the Judge may indeed decide the case otherwise than on its merits.
[35] By the very nature of the test for recusal, there can be no such blanket proscription.
[36] Secondly, the fact that a Judge has decided against the litigant on previous occasions is not itself a ground for recusal.27 The High Court recusal guidelines explicitly state that a Judge “is not required to recuse [themselves] merely because … the judge has previously dealt with the case.”28
[37] Further reinforcing the faith that is placed in Judges to try cases fairly notwithstanding previous interactions with a litigant, the High Court recusal guidelines state that even the making of a complaint to the Judicial Conduct Commissioner against a Judge “does not of itself serve to disqualify the judge from hearing cases involving the complainant.”29
[38] As the Supreme Court has stated, a Judge “should not recuse themselves without sufficient cause.”30 McGrath J stated in the Saxmere case:31
… If a practice were to emerge in New Zealand of judges disqualifying themselves without having good reason, litigants may be encouraged to raise objections which are based solely on their desire to have their case determined by a different judge who they think is more likely to decide in their favour. Such a development would soon raise legitimate questions concerning breach of the rights of other parties.
27 See Deliu v Johnstone [2021] NZCA 646 at [4].
28 High Court recusal guidelines, above n 14, at 1.5.3.
29 At 1.5.4, citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; and
Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753.
30 A (SC 106/2015) v R, above n 26, at [16], citing Stephen Sedby “When should a judge not be a judge?” [2011] 33 LRB 1 at 9; and Shimon Shetreet and Sophie Turenne in Judges on Trial: The Independence and Accountability of the English Judiciary (2nd ed, Cambridge University Press, Cambridge, 2013) at 214.
31 Saxmere, above n 18, at [88] (footnote omitted).
[39] A number of the matters raised by Mr Memelink are matters that, if they had any validity, would be the grounds for a successful appeal. Mr Memelink has almost invariably exercised his rights of appeal against the decisions he is unhappy with. If there had been any substance to his claims about my competence, diligence or knowledge of the law, they would have resulted in the Court of Appeal upholding his challenges. The fact that they have not done that is telling.
[40] The only case where one of Mr Memelink’s associates enjoyed some limited success on appeal is the one discussed at [12] above.32 Even then, however, the Supreme Court subsequently stated the decision of the Court of Appeal in setting aside the order I made for costs “turned on a procedural point” and accepted it was “arguable whether the Court of Appeal was correct in holding that [my decision on that point was wrong]”.33
[41] The reality is that Mr Memelink, being unhappy with the decisions that I have given in a number of cases involving him or related parties, and having been unable to overturn those decisions on appeal, has decided to try and ensure that I am not able to sit on his cases in the future. Essentially, he is trying to “Judge shop” and get a preferred Judge appointed. That is not permissible in our legal system.
Conclusion
[42] For the above reasons, I dismiss Mr Memelink’s application seeking that I be recused from presiding over proceedings involving him and parties related to him.
Churchman J
32 See Bassett-Burr v BPE Trustees (No 1) Ltd, above n 6, in relation to an order I made for non- party costs.
33 Haines v Memelink, above n 7, at [4] and [14].
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