Clements v Queen of England

[2018] NZHC 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-1012

[2018] NZHC 2016

BETWEEN

MIRIAM CLEMENTS

Plaintiff

AND

THE QUEEN OF ENGLAND and others Respondents

CIV 2017-404-2792
BETWEEN	MIRIAM CLEMENTS Plaintiff
AND	AUCKLAND COUNCIL and others Respondents

Hearing:	On the papers
Judgment:	8 August 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 8 August 2018 at 5.00pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:
Meredith Connell, Auckland

Copy to:
Applicant

CLEMENTS v THE QUEEN OF ENGLAND and others [2018] NZHC 2016 [8 August 2018]

[1]                 Ms Clements brings applications for review against various central government entities, commencing with “The Queen of England”, and separately against various local government entities, commencing with Auckland Council. By minute dated 1 August 2018 in the former proceeding, I refused her leave to make further application for ‘interim’ interim relief. By minute dated 2 August 2018 in the latter proceeding, I refused her application to adjourn its hearing.

[2]                 Ms Clements now brings applications in each proceeding for my recusal. In both proceedings, the applications rely on my sister’s role as Solicitor-General as providing grounds for my recusal. The applications are exceptionally discursive and conclusionary, but include allegations of my economic interest in the outcome of the proceedings, and my personal antipathy to Ms Clements. My refusals of Ms Clements’ earlier applications are cited as evidence my sister and I “work hand in hand to advantage each other”.

[3]                 Section 171 of the Senior Courts Act 2016 required the Chief High Court Judge, in consultation with the Chief Justice, to develop and publish recusal guidelines for the High Court. The resultant Recusal Guidelines articulate the “general principles”:

1.1A judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist.

1.2A judge should recuse him or herself 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.

1.3The standard for recusal is one of “real and not remote possibility”, rather than probability.

1.4The test is a two-stage one. The judge must consider

1.4.1     First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and

1.4.2     Second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.

1.5The question of recusal is for the judge hearing the case. …

[4]                 The Guidelines go on to make recommendations as to recusal in particular cases. For recusals where a relationship exists, the Guidelines provide:

2.1The existence of a relationship with a party, lawyer or witness will not in itself create a reasonable apprehension of bias. 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.

2.2A judge should recuse himself or herself where a party, lawyer or witness of disputed facts is a close relative or domestic partner of the judge.

The Guidelines also provide for recusals where an economic interest exists:

4.1 A judge should recuse him or herself if he or she, or a close relative or member of the judge’s household, directly or indirectly has an economic interest in the outcome of the proceedings. Such conflicts may arise out of current commercial or business activities, financial investments (including shareholding in public or private companies) or membership or involvement with educational, charitable or other community organisations which may be interested in the litigation.

Ms Clements expressly relies on Guidelines 2.2 and 4.1 for my recusal.

[5]                 I am not presently to determine anything in any proceeding brought by Ms Clements. Application for my recusal now is meaningless. But, even had I yet to determine the applications in Ms Clements’ proceedings, her applications for my recusal are without merit:

(a)my sister is not a party to, or lawyer in, Ms Clements’ proceedings;

(b)although the Crown Law Office acts for the respondents in the central government proceeding, to my knowledge, my sister’s role as Solicitor- General and Chief Executive Officer of the Crown Law Office was not engaged in these proceedings;

(c)neither my sister has (to my knowledge), nor I have, directly or indirectly any economic interest in the outcome of those proceedings; and

(d)there is no logical and sufficient connection between my sister’s role and resolution of the questions I was required to decide: whether Ms

Clements should be granted leave to bring a similar application to one on which she had already failed, and whether a scheduled hearing should be adjourned.

A fair-minded, fully informed observer could have had no reasonable apprehension I might not bring an impartial mind to that resolution. That is, after all, the essence of the judicial oath: “I will do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will”.

[6]                 Ms Clements’ applications for my recusal in the present proceedings are dismissed.

—Jagose J