Greymouth Petroleum Limited v Solicitor-General HC Wellington CIV 2009-485-1425
[2010] NZHC 250
•3 February 2010
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2009-485-1425
IN THE MATTER OF an Application under the Judicature
Amendment Act 1972
AND
IN THE MATTER OF a Decision of the Solicitor-General that an
Indictment by filed in his name
AND
IN THE MATTER OF an Application for Dispensation pursuant to Regulation 8 of the Crown Solicitor Regulations 1994
BETWEEN GREYMOUTH PETROLEUM LTD Plaintiff
ANDTHE SOLICITOR-GENERAL Defendant
Hearing: 3 February 2010
Appearances: R M Lithgow QC and N Levy for the Plaintiff
J Pike for the Defendant
Judgment: 3 February 2010 at Oral
ORAL JUDGMENT OF MACKENZIE J
[1] This is an application by the applicant, Greymouth Petroleum Ltd
(Greymouth) for an order recalling the judgment delivered by me on 21 December
2009, and for an order that I should recuse myself from hearing this proceeding. Both those applications came to my attention on 22 December 2009. I issued a
GREYMOUTH PETROLEUM LIMITED V SOLICITOR-GENERAL HC WN CIV-2009-485-1425 3 February
2010
minute on that day, recalling the judgment pending the hearing of the applications, and directing that that be heard this morning.
[2] Greymouth faces a number of charges of breaches of the Resource Management Act 1991. It has elected trial by jury on those charges. Prior to that election, it had been represented by Mr Brewer, the Crown Solicitor at New Plymouth. The substantive proceeding, with which my judgment of 21 December
2009 was concerned, was an application for judicial review of two decisions of the
Solicitor-General relevant to the proceedings: a decision that the indictment be filed
in the name of the Solicitor-General, and a decision refusing Mr Brewer a dispensation under the Crown Solicitors Regulations 1994 to act for Greymouth.
[3] The sequence of events, as relevant, is that the proceeding was listed for hearing before me on 11 December 2009. At that hearing, it became apparent that counsel for Greymouth had understood that Gendall J was to be the trial Judge. On
18 December, counsel for Greymouth filed a memorandum seeking that I recuse myself and order a rehearing without delivering a judgment, on the grounds that there is a real and substantial risk of the appearance of unconscious bias against the plaintiff and its principal, Mr Dunphy. Unfortunately, that memorandum was not immediately referred to me on 18 December. It was filed just before 5pm on Friday 18 December. I was not then available. That was the last day before the commencement of the vacation. I considered that the case was one where judgment should be delivered without undue delay. I had, in the week following the hearing on 11 December 2009, been able to prepare a judgment, which I finalised and sent for delivery on 21 December 2009. I had still not seen counsel’s memorandum seeking recusal. Following delivery of the judgment, an application for recall of the judgment was filed on 22 December 2009. Both that application and the earlier memorandum seeking recusal were delivered to my chambers on 22 December and I was alerted to them, I having at that stage left for the vacation. I immediately considered the matter and issued the minute of 22 December to which I have referred. I recalled the judgment, as an interim measure, pending full consideration after affording the Solicitor-General an opportunity to respond to the application.
[4] It is desirable to say something about the circumstances which prompted the application for recusal. I have addressed this to some extent in my minute, but for completeness and convenience it is desirable to restate the position, a little more fully, in this judgment. While I was at the bar, I acted in 2003 as counsel for Ngatoro Energy Limited, in proceedings brought by Greymouth against that company. Those proceedings were heard in March and April 2003 and were the subject of a judgment of Wild J delivered on 30 May 2003 (Greymouth Petroleum Acquisition Co Ltd v Ngatoro Energy HC Wellington CP162/02, 30 May 2003). It is my involvement as counsel in that earlier litigation which Greymouth asserts gives rise to a real and substantial risk of the appearance of unconscious bias against the company and Mr Dunphy.
[5] I addressed this matter in my minute of 22 December in these terms:
[3]I had been conscious of the earlier litigation, and had considered that, sometime before the hearing. I considered whether it was appropriate for me to hear the case in the light of that earlier litigation in which I had acted as counsel against Greymouth. I took into account that it is not uncommon for Judges to hear cases involving parties for whom they have acted, both for and against, while at the bar. I was also aware of, and paid particular regard to, the helpful discussion of the issue by the English Court of Appeal in Locabail Limited v Bayfield Properties Limited [2000] 1 All ER 65, in particular at page 77 paragraph [25] to the effect that ordinarily, an objection could not be soundly based on the Judge’s previous
receipt of instructions to act for or against any party, solicitor or
advocate engaged in a case before him. I considered whether there was anything in this case which would make it inappropriate to apply that general principle. I concluded that there was not. The litigation is now some six years old. It was in no way related to the present case. I agree with Mr Dunphy that it was, to some extent, acrimonious, but I personally felt that nothing in the conduct of that litigation affected my ability to decide the present case in accordance with my judicial oath, without fear or favour, affection or ill will. For those reasons, I did not consider that recusal was justified. Because the circumstances were equally known to Greymouth as to me, I considered that there was no need for any disclosure.
[6] Counsel’s memorandum asserts that the conflict should have been disclosed
to the parties prior to or at the commencement of the hearing. I need to say a little more about that contention. As I said in the minute, I considered that the circumstances were equally within Greymouth’s knowledge as my own, so that no particular disclosure was required. I did not consider it appropriate to make any
disclosure. The only matter known to me but not to Greymouth, was that I was the Judge scheduled to hear the matter. The identity of the hearing Judge will commonly become known to parties sometime before the hearing subject to any late change but that does not always occur. In this case, for reasons which are unclear, both parties had apparently been led to understand that Gendall J was to be the hearing Judge. It is not clear how this misunderstanding arose. The case had in fact been listed for hearing before me for some time and there was no late change of Judge. The fact that Greymouth was under this misapprehension as to the hearing Judge meant that Greymouth was not able to consider the position in advance of the hearing. That is unfortunate.
[7] I did not raise the matter at the hearing. I considered that the inevitable outcome, arising from the need for counsel to take instructions, would have been that the hearing of a matter to which a degree of urgency attached would necessarily have been significantly delayed, in circumstances where I, for my part, did not consider that recusal was justified and I did not consider it a case which was in the area of doubt.
[8] The procedure to be followed in a case involving possible disqualification is addressed in Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA). At
[66], reference is made to the Guide to Judicial Conduct (2nd ed 2007) published by the Council of Chief Justices of Australia. That guide includes the following:
(h)Even if the judge considers no reasonable ground of disqualification exists, it is prudent to disclose any matter that might possibly be the subject of complaint, not to obtain consent to the judge sitting, but to ascertain whether, contrary to the judge’s own view, there is any objection.
(i)The judge has a duty to try cases in the judge’s list, and should recognise that disqualification places a burden on the judge’s colleagues or may occasion delay to the parties if another judge is not available.
[9] I do not regard paragraph (h) as requiring disclosure of a matter which is already fully known to the parties, which the Judge does not consider to be a disqualifying factor. To raise such a matter may suggest that the Judge does think that the matter does give rise to a reasonable ground for disqualification. In reaching
my view that the matter did not give grounds for disqualification I was mindful of the principle in paragraph (i), affirmed by the Court of Appeal in Muir at [35]. That
of course is all, in this case, affected by the misunderstanding as to who the trial Judge would be and the fact that the circumstances were not therefore fully known to Greymouth prior to the hearing.
[10] The view which I had taken of the appropriateness of my hearing the matter was not necessarily the last word. Whatever preliminary view the Judge may have formed for himself, that view must be reconsidered if an application for recusal is made. That was confirmed in Locabail at [21] as follows:
[21] In any case giving rise to automatic disqualification on the authority
of Dimes' case and Ex p Pinochet (No 2), the judge should recuse himself from the case before any objection is raised. The same course should be followed if, for solid reasons, the judge feels personally embarrassed in hearing the case. In either event it is highly desirable, if extra cost, delay and inconvenience are to be avoided, that the judge should stand down at the earliest possible stage, not waiting until the eve or the day of the hearing. Parties should not be confronted with a last-minute choice between adjournment and waiver of an otherwise valid objection. If, in any case not giving rise to automatic disqualification and not causing personal embarrassment to the judge, he or she is or becomes aware of any matter which could arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance. … (emphasis added)
[11] For the reasons I have given, the case was not one where I considered that I should recuse myself before any objection was raised. It was however necessary for me to consider any objection and exercise my judgment upon it. Given the unfortunate sequence of events, that has not occurred here.
[12] Counsel for the Solicitor-General submits that the circumstances are not such
as to require recusal. I do not consider, in the light of the unfortunate sequence of events, that it would be appropriate to resolve this matter by now dealing with the plaintiff’s recusal application. The plaintiff was entitled to expect that the recusal application would have been dealt with before judgment was delivered. That did not
occur. I do not consider that it would be right, after judgment has been delivered, to resolve the matter by dealing with the recusal application. I consider that the unfortunate sequence of events is such that a fair minded lay observer might reasonably apprehend that justice had not been seen to be done, by reason of the fact that the application for recusal was not dealt with before judgment was delivered.
[13] The fact is that judgment was delivered after an application for recusal had been made but before that application had been dealt with. I trust that the outline which I have given of the sequence of events will make it clear that that was not done consciously or deliberately. But the fact remains that it has happened. In my view that creates a risk that justice may not be seen to have been done. I do not consider that that risk can be eliminated by now considering, after delivery of judgment, the recusal application. This case is not, as was Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2010] 1 NZLR 35 (and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd No 2 [2010] 1 NZLR 76), a case where the request for recusal was first made after judgment had been delivered.
[14] I consider that the better course is to recall the judgment permanently and direct a rehearing. That creates a possible risk of injustice, particularly to the Solicitor-General, but I consider that that risk is slight. The case can be reheard soon. The case is of short compass. It involves submissions only and the submissions already filed can be used. There is no evidence, so no risk that the evidence may come out differently at a new hearing.
[15] At the outset of this hearing I expressed that preliminary view to counsel. Counsel conferred and indicated that they did not oppose the course which I had suggested. I had advised counsel of possible dates for hearing, and counsel are available for the matter to be heard on Thursday, 18 February and I direct that it is to be reheard on that date.
[16] Accordingly, the formal order is that:
a) The recall of the judgment made by my minute of 22 December 2009
is now made permanent;
b) The case is set down for hearing on Thursday 18 February;
c) There will be no hearing fee in respect of today’s application; and
d) No issue as to costs arises on today’s application.
[17] Subsequent to my delivery of this oral judgment in Court, I have noted that it would also be appropriate to direct that there be no hearing fee for the rehearing on
18 February, and I so direct.
Solicitors: F J Handy, Wellington for Plaintiff
Crown Law Office for Defendant
“A D MacKenzie J”
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