Burrows v Thomson
[2018] NZHC 2095
•15 August 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2018-454-000050
[2018] NZHC 2095
BETWEEN WAYNE JOHN BURROWS
Appellant
AND
AMY KATRINA THOMSON
Respondent
Hearing: 1 August 2018 Counsel:
Appellant in person
J C LaHatte for Respondent
Judgment:
15 August 2018
JUDGMENT OF COLLINS J
[Appeal against the decision of the District Court not to waive security for costs in the High Court]
Introduction
[1] The issue addressed in this judgment is whether I should allow Mr Burrows’ appeal from a decision of Judge Davidson, in which he dismissed Mr Burrows’ application to waive security for costs. Mr Burrows was required to pay security for costs in relation to an appeal that he had filed from a decision of Judge Davidson issuing a restraining order in favour of Ms Thomson against Mr Burrows under the Harassment Act 1997 (the substantive proceeding).1
1 Thomson v Burrows [2017] NZDC 5681.
BURROWS v THOMSON (No 2) [2018] NZHC 2095 [15 August 2018]
Background
[2] After Mr Burrows filed his appeal in the substantive proceeding, he made a without notice application to the District Court under s 34(3) of the Harassment Act for an order that he not be required to pay security for costs on the appeal under s 126(1) of the District Court Act 2016.
[3] On 31 May 2018, Judge Davidson declined the s 34(3) application on the papers because no reasons were provided by Mr Burrows as to why he should be excused from paying security for costs.
[4] That same day, Mr Burrows filed an appeal against the decision of Judge Davidson to decline his application under s 34(3) (the security for costs appeal).
[5] On 22 June 2018, Churchman J issued a minute directing Mr Burrows to pay security for costs in the substantive appeal because the security for costs appeal did not operate as a stay. Mr Burrows paid security for costs forthwith.
[6] On 11 July 2018, Thomas J issued a minute making further directions for both the substantive appeal and the security for costs appeal.
[7]The substantive appeal has yet to be heard.
District Court decision
[8]Judge Davidson issued a brief decision that read as follows:
Application declined.
No reasons advanced as to why discretion under s 34(3) Harassment Act 1997 should be exercised to not require security for appeal.
Given that s 6(3) Harassment Act 1997 requires that I am “guided in the exercise of that power by the object specified in subsection 1” good reason would be required and none provided.
Grounds of appeal
[9]Mr Burrows appeals the decision of Judge Davidson on three grounds:
(1)that he was not given the opportunity to be heard on the application;
(2)that Judge Davidson was wrong to dismiss his application for lack of reasons; and
(3)that Judge Davidson was biased against him.
First ground of appeal – natural justice
[10] Mr Burrows objects to the fact his application to waive security for costs was determined on the papers, without the opportunity for him to present arguments in favour of it. He says he was unaware that there was any requirement to provide reasons with his written application.
[11] It is, however, usual to file an affidavit with an interlocutory application, and a memorandum in support in the case of a without notice application. Rule 7.16(2)(b) of the District Court Rules 2014 provides that a without notice application may only be made:
… if the applicant has made all reasonable inquiries and taken all reasonable steps to ensure that the application and supporting documents contain all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that would support the position of any other party.
[12]Rules 7.16(3) provides:
(3)An applicant who makes an application without notice must, if the application is of a kind that is likely to be contested if it were made on notice, file a memorandum with the application that sets out—
(a)the background to the proceeding (including the material facts that relate to the proceeding); and
(b)the grounds on which each order is sought; and
(c)an explanation of the grounds on which each order is sought without notice; and
(d)all information known to the applicant that is relevant to the application, including any known grounds of opposition or defence that any other party might rely on and any facts that would support opposition to the application or defence of the proceeding by any other party.
[13]The commentary on this rule explains:2
Consistent with the focus away from merely signing a certificate, the rules now formalise what was once only a matter of “best practice”, namely the filing of a memorandum in support of a without notice application that also addresses the grounds relied upon in order to bring the application without notice and that sets out the relevant information known to the applicant and that has been addressed as part of the obligation to ensure full disclosure to the court on such an application.
[14]Rule 7.16(4)(a) provides:
(4)Failure to disclose all relevant matters to the court or comply with subclause (3) may result in the court—
(a)dismissing the application; …
[15] Mr Burrows failed to comply with r 7.16(3) and so it was open to Judge Davidson to dismiss his application under r 7.16(4)(a).
[16]Rule 7.39 deals with how an application without notice is to be determined:
7.39 Determination of application without notice
(1)The Registrar must refer an application without notice to a Judge for direction or decision.
(2)The Judge, on receiving an application without notice, must determine whether the application can properly be dealt with without notice.
(3) …
(4)If the Judge determines that the application can properly be dealt with without notice, the Judge may—
…
(c) dismiss the application.
(5)If the Judge determines that the application cannot properly be dealt with without notice, the Judge may—
2 Roderick Joyce (ed) Civil Procedure: District Courts Rules & Tribunals (online ed, Brookers) at [DCR7.16.02].
…
(b)if the Judge considers that the application has no chance of success, dismiss the application.
[17] Regardless of whether Judge Davidson considered that the application could properly be dealt with without notice, it was open to him to dismiss the application without a hearing. The conclusion that the phrase “dismiss the application” in r 7.39(4)(c) and (5)(b) refers to dismissal without a hearing is supported by r 7.26, which requires the Registrar to allocate a hearing for any interlocutory application “other than an application without notice”.
[18]The first ground of appeal therefore fails.
Second ground of appeal – lack of reasons
[19] Mr Burrows takes issue with Judge Davidson dismissing his application because no reasons were advanced. He says that he had earlier sent an email to the Court asking: “Do I get to make any submissions on this application?” The Registry officer responded: “Until Judge has made directions I can’t advise on how this matter will proceed”.
[20] Mr Burrows submits that in the circumstances, Judge Davidson was either aware, or ought to have been made aware, that he wanted to make submissions on the application. Mr Burrows also submits that, in any case, if Judge Davidson was unsure of the reasons for the application, he should have requested submissions before reaching a decision.
[21] This ground of appeal has largely been dealt with above. In saying that Mr Burrows failed to provide reasons, Judge Davidson clearly had in mind the requirement in r 7.16(3). As already explained, it was not necessary for Judge Davidson to hold a hearing, or to request submissions from Mr Burrows, before dismissing the application. Mr Burrows clearly did not provide reasons within the meaning of r 7.16(3).
[22] Furthermore, Mr Burrows still has not provided any reasons in favour of his application. He says that he cannot do so because Ms Thomson has been served, despite his protests, and that the information relating to his application is personal and he does not want Ms Thomson or her counsel to be made aware of it.
[23] In a minute on 11 July 2018, Thomas J dealt with this issue in the following way:
The confidentiality of Mr Burrow’s financial affairs is a matter which can be easily dealt with. For instance, access to documents containing private information may be restricted to Ms Thomson’s counsel, if a Judge sees fit to so order.
[24] Thomas J then made the following direction regarding Mr Burrows’ submissions and bundle of documents:
Any information he considers private or of a personal nature may be redacted from the documents provided to Mr LaHatte and such redactions identified in the copy filed in Court. The Judge will then determine whether Mr LaHatte should be allowed to view any such material.
[25] In light of this, Mr Burrows has clearly been given the opportunity to present his arguments in favour of his application and has failed to do so.
[26] Mr Burrows also takes issue with Judge Davidson’s reliance on s 6(3) of the Harassment Act. No issue can properly be taken with this. Judge Davidson was merely noting that any decision under the Harassment Act must be guided by the object of “ensuring that there is adequate legal protection for all victims of harassment”. One such legal protection is security for costs on appeal. Judge Davidson appears to have been stating the obvious, that it would be improper to relieve an appellant of the obligation to pay security for costs on appeal in the absence of good reasons, or in fact any reasons at all.
[27]The second ground of appeal therefore fails.
Third ground of appeal – Bias
[28] Mr Burrows submits that Judge Davidson has “an extreme bias” against him and should have recused himself from determining the application. In support of this, he refers to a number of incidents involving Judge Davidson:
(1)On 16 May 2016, just prior to a hearing where Mr Burrows was to appear before him, Judge Davidson had an email placed on the court file that alleged Mr Burrows had used expletive language to a Registrar. Mr Burrows denies this allegation and claims Judge Davidson never asked his views about the matter.
(2)On 10 March 2017, Judge Davidson declined to stop two court security officers from removing Mr Burrows from the Court. He refers to this as an assault and alleges that Judge Davidson was an accessory. This refers to an incident that occurred in court after Judge Davidson announced that he was issuing the restraining order against Mr Burrows in favour of Ms Thomson. In his reasons judgment, Judge Davidson described this incident as Mr Burrows acting “in a wholly unacceptable and violent way” and noted that he “could only be calmed by 2 security officers and 3 police officers”.3 Mr Burrows is pursuing a judicial conduct complaint, along with complaints to the police, with respect to this incident.
[29] The District Court Recusal Guidelines explain the relevant principles in the following way:4
The guiding principle is that a Judge is disqualified from sitting if in the circumstances there is a real possibility that in the eyes of a fair-minded and fully informed observer the Judge might not be impartial in reaching a decision in the case.
The test is a two-step one requiring consideration of:
(a)What are the circumstances relevant to the possible need for recusal because of apparent bias?
3 Thomson v Burrows, above n 1, at [45].
4 District Court Recusal Guidelines (issued under s 217 of the District Court Act 2016) at cl 2.
(b)Whether those circumstances lead to a reasonable apprehension the Judge may not be impartial.
The test requires ascertainment of, first what it is that might possibly lead to a reasonable apprehension that the Judge might decide the case other than on its merits and, secondly, whether there is a logical and sufficient connection between those circumstances and that apprehension.
[30] There is nothing in the two incidents referred to by Mr Burrows that would lead to a reasonable apprehension that Judge Davidson would decide Mr Burrows’ application other than on its merits. A fair-minded and fully informed observer would not consider that Judge Davidson might not act impartially as a result of those incidents. Both incidents involve nothing more than standard judicial conduct in response to events as they unfolded.
[31]The third ground of appeal therefore fails.
Result
[32]The appeal is dismissed.
[33] Any issues as to costs in relation to this appeal can be dealt with when the appeal from the substantive proceeding is heard and determined.
D B Collins J
Solicitors:
Ord Legal, Wellington for the Respondent
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