Havenleigh Global Services Limited v Henderson
[2017] NZHC 946
•11 May 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2010-409-000559 [2017] NZHC 946
IN THE MATTER of the Insolvency Act 2006 IN THE MATTER
of the Bankruptcy of David Ian Henderson
BETWEEN
HAVENLEIGH GLOBAL SERVICES LIMITED AND FM CUSTODIANS LIMITED
Judgment Creditors
(Substituted Creditors)
AND
DAVID IAN HENDERSON Judgment Debtor
Hearing: 8 May 2017 Appearances:
D I Henderson - Defendant in Person
C Vinnell and J N Foster for Official AssigneeJudgment:
11 May 2017
JUDGMENT OF GENDALL J
HAVENLEIGH GLOBAL SERVICES LTD v HENDERSON [2017] NZHC 946 [11 May 2017]
Table of Contents
Para No
Introduction [1] (1) THE 10 OCTOBER 2016 REVIEW APPLICATION OF THE
4 OCTOBER 2016 DECISION
[4]
Background facts [4] Present application [11] (A) Jurisdiction [14] Analysis [19] Outcome [44] (B) Substantive decision [47] (2) THE 15 MARCH 2017 REVIEW APPLICATION OF THE
28 FEBRUARY 2017 DECISION
[54]
Background facts [54] Jurisdiction [58] Substantive decision [70] (3) CONCLUSION
[72]
Introduction
[1] On 10 October 2016 the applicant David Ian Henderson (Mr Henderson) filed an application in this Court which effectively sought to reverse or modify a judgment of Associate Judge Osborne in this Court dated 4 October 2016 in which an application for recusal was dismissed.
[2] Then, on 15 March 2017, Mr Henderson filed a further application in this
Court which sought to review a decision of Associate Judge Osborne dated
28 February 2017 in which a further application for recusal made by Mr Henderson was also dismissed.
[3] I heard argument on these review applications on 8 May 2017. Mr Henderson the applicant appeared in person on these matters. Mr Vinnell appeared for the Official Assignee, a party who opposed the application noted at [1] above. It is useful here to consider the two applications in turn. So first, I turn to consider the 10 October 2016 application by Mr Henderson.
(1) THE 10 OCTOBER 2016 REVIEW APPLICATION OF THE
4 OCTOBER 2016 DECISION
Background facts
[4] On 29 November 2010 Mr Henderson was adjudicated bankrupt by order of this Court. As I understand it, he was to have been automatically discharged from this bankruptcy in January 2014 but the Official Assignee on 28 November 2013 filed a Notice of Objection to Mr Henderson’s discharge pursuant to s 292
Insolvency Act 2006. In addition, two creditors gave notice of their opposition to the discharge.
[5] As a result of the objections to his discharge, the Official Assignee was required to summons Mr Henderson to be publicly examined by the Court. This occurred.
[6] The Court allocated 3 August 2015 as the commencement of Mr Henderson’s
public examination, being in mind s 295 Insolvency Act 2006.
[7] That public examination commenced before Associate Judge Osborne and proceeded for some time with, as I understand it, approximately 20 hearing days of evidence followed by some three days for provision of submissions.
[8] After the hearing of the evidence on the public examination, Mr Henderson raised for the first time this issue over whether Associate Judge Osborne should recuse himself on the almost completed public examination he was in the course of conducting.
[9] A hearing with respect to that recusal application then took place before
Associate Judge Osborne over two sitting days, on 26 and 27 September 2016
[10] Associate Judge Osborne reserved his decision on the recusal application. Then, on 4 October 2016 he gave a carefully reasoned decision of some 187 paragraphs (with attached schedules) refusing to recuse himself. It is that recusal decision which is the subject of the present review application.
Present application
[11] Initially the Official Assignee raised a jurisdictional issue on this particular application. Under this, she asserted that the correct procedure in relation to Mr Henderson’s concern with the 4 October 2016 recusal decision of Associate Judge Osborne was by way of an appeal of this decision to the Court of Appeal. The application before me in this Court is, of course, one for review of the Associate Judge’s decision in terms of s 26P(1) Judicature Act 1908, and r 2.13
High Court Rules, provisions which applied at the time.
[12] At the hearing of this matter before me, however, I heard argument first on this jurisdiction question and, having reserved my decision on the jurisdiction question, I went on to hear submissions on the substantive application itself.
[13] It is appropriate that I deal first with the jurisdiction question which I now do.
(A) Jurisdiction
[14] As I have noted above, the present application is one brought by
Mr Henderson for review of the Associate Judge’s 4 October 2016 recusal decision.
[15] Whether this Court has the jurisdiction to review the Associate Judge’s decision is determined at the time by the issue of whether that decision was made in chambers or in open court.
[16] Here, this Court’s jurisdiction to review the Associate Judge’s decision at the time this 10 October 2016 application was made was provided for in s 26P(1) Judicature Act 1908 which specified:
26P Review of, or appeals against, decision of Associate Judges
(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in chambers may apply to the court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the court -
(a) must review the order or decision in accordance with the High Court Rules; and
(b) may make such order as may be just…
[17] Decisions made by an Associate Judge “in chambers” were generally considered to encompass decisions on applications to the Court regarded as true interlocutory applications.
[18] However, if the decision of an Associate Judge involved the exercise of the powers of the High Court or a Judge under the Judicature Act 1908 in open court a right of appeal lay directly to the Court of Appeal under s 26P(2) of the Act. On this see Muollo v Garnham.1
Analysis
[19] It is useful at the outset to consider what is the broad nature of the recusal application here.
[20] As I have noted, the effect of s 26P(1) and (2) of the Judicature Act 1908 is that a challenged decision made by an Associate Judge in chambers must be reviewed by a High Court Judge and any decision of an Associate Judge made in open court is to be appealed to the Court of Appeal.
[21] It is useful to note, however, the decision in Siemer v Heron2 which involved a situation where an interlocutory application was heard in open court. The concept of “in open court for chambers” was utilised, and thus a true interlocutory application heard in open court may still be regarded as a decision made in chambers.
[22] An Associate Judge’s jurisdiction to exercise powers of the Court (in open court) is set out in s 26I of the Judicature Act 1908. Section 26I(2)(ha) provides that an Associate Judge has High Court jurisdiction in respect of proceedings under the Insolvency Act 2006. This includes a public examination. And indeed, Mr Henderson has appealed the public examination decision to the Court of Appeal.
[23] Section 26I(3) of the Judicature Act 1908 also provides that “An Associate Judge shall have and may exercise all the jurisdiction and powers of the Court to deal with costs and other matters incidental to the matters over which an Associate Judge has jurisdiction pursuant to subsection (1) or subsection (2).”
[24] The Official Assignee says here that the present recusal application is a matter “incidental” to the public examination, and therefore it is an exercise of the High Court jurisdiction and is only challengeable by appeal to the Court of Appeal.
[25] In this case Mr Henderson’s recusal application was heard on 26 and
27 September 2016 in open court with counsel robed and with members of the public and the media present. The recusal application itself which Mr Henderson filed was not headed “Interlocutory”, although it may have been treated as such at least notionally. Nothing hinges on this as I see it, however.
[26] No directly equivalent case law on this point was advanced at the hearing before me. And, as an aside, it is notable too that from 1 March 2017 the Senior Courts Act 2016 will make all decisions of Associate Judges appealable only to the Court of Appeal.
[27] In my view the Court here should not be distracted by the fact that the recusal application may technically have been seen as an interlocutory one, even though not labelled as such.
[28] What is relevant to a point here, as I see it, is a broad consideration of the two best practice guides relating to judicial disqualification procedures in New Zealand and Australia. Arguably these require recusal applications to be heard in open court.
[29] The Australian Guide to Judicial Conduct,3 which was cited with approval in the New Zealand Court of Appeal decision Muir v Commissioner of Inland Revenue,4 records in relation to recusal that:
It will generally be appropriate in cases of uncertainty for the Judge to hear submissions on behalf of the parties and that should be done in open court.
[30] More importantly, the Australian Guide goes on to note:
If the Judge decides to sit, the reasons for that decision should be recorded in open court. So should the disclosure of the relevant circumstances.
[31] So far as the New Zealand Guidelines for Judicial Conduct relating to recusal at the time are concerned, these provided:
Discussion between the Judge and the parties about whether to proceed should normally be in open court, unless the case itself is to be heard in Chambers. (At para [43]).
[32] Next, it is important to note in the present case, and I repeat that, issues resulting in the 4 October 2016 recusal decision at question here were not raised by Mr Henderson until the conclusion of all the extensive evidence heard at around
hearing day 20 of Mr Henderson’s public examination hearing.
3 Guide to Judicial Conduct (2nd Ed) Australia Institute of Judicial Administration 2007.
4 Muir v Commissioner of Inland Revenue [2007] NZCA 334.
[33] Turning to relevant provisions in the Insolvency Act 2006, s 173 provides for this Court to hold a public examination of a bankrupt in a situation where, as occurred here, the Official Assignee requires this to happen. Significantly too, s 411(2)(a) requires that the public examination of a bankrupt must be heard and dealt with in open court. Section 175 mandates that this public examination must happen promptly by providing that it is to be held “as soon as practicable”. And, s
179 provides that the public examination ends when the Court makes an order to this effect.
[34] Section 26I(2)(ha) of the Judicature Act 1908 in force at the time provided that an Associate Judge has High Court jurisdiction (generally involving the powers of a judge in open court) in respect of proceedings under the Insolvency Act 2006. It is useful here to also repeat s 26I(3) which provided that:
An Associate Judge shall have and may exercise all the jurisdiction and powers of the court to deal with costs and other matters incidental to the matters over which an Associate Judge has jurisdiction pursuant to subsection (1) or subsection (2).
(emphasis added)
[35] The application for recusal here, coming as it did long into Mr Henderson’s public examination hearing, in my view was a “matter incidental” to the public examination under the Insolvency Act 2006. The application was not one made prior to commencement of the public examination. In addition, it was necessarily dealt with during the public examination and before it was concluded in terms of s 179
Insolvency Act 2006. Therefore, I am satisfied the recusal application was determined in the exercise by Associate Judge Osborne of his open court jurisdiction in the High Court.
[36] From Wilson v ANZ National Bank5 it is clear also that in a case such as the present the recusal application needs to be “part and parcel” of Mr Henderson’s public examination to thus meet the test of being a “matter incidental” in terms of the
Insolvency Act.
5 Wilson v ANZ National Bank (HC) Auckland 22 June 2011, CIV-2010-404-5025.
[37] On this I am satisfied that the 4 October 2016 recusal application coming, as it did, long into the public examination process itself, determined a fundamental question of whether the presiding Associate Judge could continue to hear the examination. Clearly it arose during the course of the public examination, was fundamental to and part and parcel of that examination.
[38] It is relevant too, in my view, that Mr Henderson had earlier appealed to the Court of Appeal an 18 March 2014 decision of Associate Judge Osborne on an interlocutory application for directions relating to documents by the Official Assignee.6
[39] As I have said above, notably before me none of the various cases which were referred to me including Siemer v Heron7 (which was a strike out application) dealt with recusal applications. As I have noted, even if the 4 October 2016 recusal application may have proceeded as if it was an interlocutory one, this is not decisive.
[40] In this case Mr Henderson’s public examination was required to and did take place in open court. With these specified guidelines in mind, I am satisfied that this must take the present recusal application outside what is a normal classification as an interlocutory application. Instead, as I see the position, it puts the present application squarely within the exercise of the Associate Judge’s High Court jurisdiction in open court.
[41] Therefore, I find that given the recusal decision was one given in open court and not in chambers by way of an interlocutory application, this matter should be appealed to the Court of Appeal under s 26P(2) and not be the subject of an application for review to this Court under s 26P(1) Judicature Act 1908.
[42] Finally, I note in passing that this is a matter which is unlikely to arise again and therefore form some precedent in light of the Senior Courts Act 2016 which
applies in New Zealand from 1 March 2017. Section 27 of the Senior Courts Act
6 Havenleigh Global Services Ltd v Henderson [2014] NZHC 499.
7 Siemer v Heron, above n 1.
2016 provides for appeals against decisions of Associate Judges to be made only to the Court of Appeal in situations relating to interlocutory applications.
[43] I find therefore that Mr Henderson should have appealed the 4 October 2016 recusal decision to the Court of Appeal. It is also clear that this is the most practical and efficient course in this proceeding. I reach this conclusion given too that Mr Henderson has appealed to the Court of Appeal the final substantive decision of Associate Judge Osborne following the public examination releasing him from bankruptcy on conditions. This appeal is now before the Court of Appeal. Any suggestion Mr Henderson has endeavoured to advance that he will now be deprived of the opportunity to argue the recusal point in the Court of Appeal seems to be misconceived. In particular Mr Vinnell, counsel for the Official Assignee, before me suggested that the recusal issue falls squarely within the issues to be determined in the substantive appeal before the Court of Appeal and he confirmed the Official Assignee will not object to that issue being dealt with in the extant appeal itself.
Outcome
[44] It follows therefore that the proper course which Mr Henderson should have adopted here was to appeal to the Court of Appeal the 4 October 2016 recusal decision of Associate Judge Osborne rather than by seeking to have this reviewed by the High Court under s 26P(1) of the Judicature Act 1908. I am satisfied this Court has no jurisdiction to consider the present review application. As to Mr Henderson’s challenge to Associate Judge Osborne’s recusal decision I repeat his only recourse, in my view, is to appeal this decision to the Court of Appeal.
[45] This Court lacking jurisdiction to hear the present application, it is accordingly dismissed.
[46] Having reached that conclusion, I need go no further in considering in detail the submissions advanced before me on Mr Henderson’s substantive application itself. Notwithstanding this, and if I may be wrong on this matter of jurisdiction, I will now make some comments and record my brief views on the substantive application itself.
(B) Substantive decision
[47] As I have noted above, this Court’s jurisdiction to review an Associate Judge’s decision in chambers was provided for at the operative time in s 26P(1) of the Judicature Act 1908. McGechan on Procedure8 summarised the proper approach to such a review application at para HR2.3.02 in the following way:
HR2.3.02 Approach to review
(1) Overview
(a) If the Associate Judge’s decision is a reasoned one, following a defended hearing (i.e. full argument from opposing parties), the approach is essentially appellate (r 2.3(4)): Perriam v Wilkes [2014] NZHC 2192 at [4]. The starting point is the Associate Judge’s decision. The applicant has the burden of persuading the Court that the decision was wrong – that it rested on unsupportable findings of fact and/or applied wrong principles of law: Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd (2002)
16 PRNZ 107 (HC) at [13]. The Court will apply the approach in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, (2007) 18 PRNZ
768 (SC), which involves the Court making its own assessment as to whether
the original decision is wrong: Bermeister v O’Brien [2008] 3 NZLR 842, (2009) 9 NZBLC 102,415 (HC) at [29]. The Judge has the discretion to rehear all or part of the evidence and to hear further evidence (r 2.3(4)).
(b) If the Associate Judge’s decision involves exercising a discretion, the appellant must show the Associate Judge acted on a wrong principle or failed to take into account some relevant matter or took into account some irrelevant matter. The Court will not repeat the weighing exercise unless the Associate Judge gave excessive weight to some factor or patently inadequate weight to another, as to be “plainly wrong”: Alex Harvey Industries Ltd v CIR (2001) 15 PRNZ 361 (CA) at [12]-[15].
[48] The 4 October 2016 decision of Associate Judge Osborne under review here was:
(a) given after considering substantial argument from Mr Henderson and counsel for the Official Assignee over a hearing of two days; and
(b) recorded in a substantial and carefully reasoned judgment by
Associate Judge Osborne totalling some 197 paragraphs (with further appendices as Schedules A - D).
8 A C Beck and Others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at
HR2.3.02.
[49] That decision under review is the starting point. Mr Henderson clearly has the onus of showing the decision was wrong in that it rested on unsupportable findings of fact and/or it applied wrong principles of law. The present application for review is not a full rehearing or a rehearing de novo, nor does it present an opportunity for Mr Henderson to simply restate his case for recusal which is effectively what he attempted to do before me. Indeed, his submissions before me, as I understand it, were largely a simple repeat of much of the submission material he had placed before Associate Judge Osborne at the original recusal hearing on
26 and 27 September 2016. Instead, he was required to show that Associate Judge Osborne’s decision was wrong, and I need to say at the outset that he was quite unable to do this.
[50] In his 10 October 2016 review application, Mr Henderson set out 29 separate grounds in support of that application. In advancing his application before me Mr Henderson did not put any real arguments addressing in turn each of these
29 grounds, a number of which in any event were repetitive. By way of contrast, Mr Vinnell for the Official Assignee took some time to address each of the 29 review grounds in detail. Given my decision above, I do not intend to repeat the lengthy and persuasive arguments on these grounds put before the Court by Mr Vinnell, suffice to say that I am persuaded here that Mr Henderson has simply failed to establish that there has been any error of principle made by the Associate Judge, or that he has been influenced by irrelevant considerations or that there has been a failure on his part to take into account relevant considerations or that the Associate Judge’s decision was plainly wrong. Mr Henderson’s fundamental contention here is that Associate Judge Osborne should have recused himself in this case on the basis of apparent bias. The law relating to allegations of apparent bias in this area has been settled by the Supreme Court in Saxmere Co Ltd v Wool Board
Disestablishment Co Ltd,9 as confirmed in Siemer v Heron.10 I am satisfied that
under all the circumstances prevailing in the present case and, given the conduct of Associate Judge Osborne throughout, a fair-minded lay observer would not conclude that there had been any bias apparent or otherwise or any other reason why the
Associate Judge should have recused himself from conducting or continuing to
9 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72.
10 Siemer v Heron, above n 2.
conduct Mr Henderson’s public examination, an examination which was already at the time almost completed. And significantly I note too that Associate Judge Osborne’s 4 October 2016 decision was given in a careful, well reasoned and comprehensive judgment. Mr Henderson presented nothing new and certainly no new evidence was provided to support his present application for review.
[51] In passing, there is one matter outlined at paras [8] and [9] of the grounds advanced by Mr Henderson in support of this application on which it is appropriate to make some additional brief comment. This related to Mr Henderson’s contention that Associate Judge Osborne was wrong in his decision to have concluded that there was an implied waiver on the part of Mr Henderson of any possible conflict arising from Associate Judge Osborne’s previous involvement disclosed in the Regalwood litigation. Recusal here was not raised until Mr Henderson’s first application in April 2016, some seven years after Associate Judge Osborne in discussion with Mr Henderson’s counsel at the time Mr Forbes QC had mentioned the issue as a possibility. This issue was carefully considered at para [71]-[85] of Associate Judge Osborne’s recusal decision under review.
[52] And indeed, Associate Judge Osborne has sat in this Court as a Judicial Officer in a large number of cases involving Mr Henderson and his related companies and entities over the years since his appointment to that Office with no issues of recusal raised by or on behalf of Mr Henderson until April 2016 when his public examination was nearing its conclusion. The many earlier matters included, in particular, Associate Judge Osborne hearing applications and making orders first, to place Mr Henderson’s company Property Ventures Ltd into liquidation (significantly, with the company being represented at the time by Mr Forbes QC) and secondly, to adjudicate Mr Henderson bankrupt. At no time during any of these many occasions on which Associate Judge Osborne was sitting in matters involving Mr Henderson was an issue of recusal raised. All this, in my judgment, must provide strong support to the waiver conclusion reached by Associate Judge Osborne.
[53] In all these circumstances, if this Court did have jurisdiction I express the view that I would be satisfied that there was no reviewable error in Associate
Judge Osborne’s decision of 4 October 2016 and that the present review application would be dismissed on this ground as well.
(2) THE 15 MARCH 2017 REVIEW APPLICATION OF THE
28 FEBRUARY 2017 DECISION
Background facts
[54] On 27 February 2017 Associate Judge Osborne heard 18 applications brought by Mr Henderson following his discharge from bankruptcy for permission to be involved in the management or other activities which would otherwise have been precluded under the business restriction conditions imposed upon his discharge.
[55] During that hearing, Mr Henderson asked Associate Judge Osborne to recuse himself from consideration of these applications for permission. Associate Judge Osborne noted that Mr Henderson had made a similar application for recusal towards the conclusion of his public examination process which had been declined.
[56] Associate Judge Osborne gave his decision on that recusal application on
28 February 2017 declining the application.
[57] It is that decision which is the subject of this 15 March 2017 review application.
Jurisdiction
[58] Like the other 10 October 2016 review application which I have addressed above, jurisdiction issues also arise with respect to this particular application.
[59] On 1 March 2017 the Senior Courts Act 2016 came into force in this country. This provided for appeals against decisions made by Associate Judges to be governed by s 27 which provides:
(1) A party to any proceedings may appeal to the Court of Appeal against any order or decision of an Associate Judge in those proceedings.
[60] Clause 11 of Schedule 5 to the Act provides for some transitional measures. In particular:
(2) A proceeding that is pending on 1 March 2017 must be continued, completed, and enforced under the High Court Rules 2016 (meaning the High Court Rules 2016 as in force immediately before 1 March
2017) as in force immediately after that date…
(emphasis added)
[61] This calls for an interpretation of “proceeding” and “pending”. In particular, the question is whether, where Associate Judge Osborne gave his decision before 1
March but review/appeal was sought after 1 March, that state of affairs amounts to
“proceedings” which are “pending”.
[62] Under s 7 of the Act, “proceedings” is broadly and unhelpfully defined to
“[include] actions and matters”.
[63] Opai v Culpan (No. 4)11, a judgment of Associate Judge Bell of 2 March
2017 is somewhat instructive. That case concerned a costs judgment in respect of interlocutory matters decided in December 2016. In that case, Associate Judge Bell set out the impact of the new Act, but found that it did not affect the proceedings with which he was concerned. Although not expressly stated, the clear inference is that the parties had applied to review the Judge’s interlocutory judgments before
1 March 2017. Thus it was clearly a case where the review application was “pending” at the time the Act came into force, because it had yet to be heard or determined. In that case, the old High Court Rules applied.
[64] The situation here, in my view, is not analogous. Although proceedings were “continuing” in the sense that the application for review represented a “continuation of them”, any application was not “pending”. Clause 11(2) refers to the pending proceedings being “continued, completed, and enforced”, which does not make sense in the context of a decision that has already been made.
[65] For all intents and purposes the matter was at an end when Associate Judge
Osborne gave his decision in February 2017. The matter was “revived” by
11 Opai v Culpan (No. 4) [2017] NZHC 307.
Mr Henderson’s application for review later in March 2017, but at the time the Act came into force on 1 March 2017, the relevant part of the proceedings was concluded. There might never have been an application for review, and indeed that was the case at the time the new Senior Courts Act came into force. It would be an odd thing if a decision which was never appealed in any way, could be considered to be a “pending proceeding” at any time, let alone at some arbitrary time when a change in the legislation occurs.
[66] In my view, it must follow that the Senior Courts Act applies to the present situation. Accordingly, appeals are to the Court of Appeal under s 27. Section 27(2) states that s 56 is to apply to such an appeal. In particular, s 56(3) provides:
(3) No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
[67] Leave is dispensed with under s 56(4) where the decision relates to a strike out or summary judgment. Associate Judge Osborne’s decision here not to recuse himself might well be a decision falling within s 56(3), and therefore in that event leave would be required.
[68] I conclude therefore that this Court entirely lacks jurisdiction to hear this present review application in light of the provisions of the Senior Courts Act 2016 and therefore it is accordingly dismissed.
[69] If I may be wrong as to that, however, in any event for similar reasons to those outlined at paras [14]-[45] above relating to Mr Henderson’s earlier application I find that even if this matter was to be considered under the previous provisions of the Judicature Act 1908 this Court would not have jurisdiction to consider this particular review application and Mr Henderson’s only recourse would be to appeal that decision to the Court of Appeal.
Substantive decision
[70] Again, having reached this conclusion on the Court lacking jurisdiction to hear Mr Henderson’s application to review the 28 February 2017 decision, I need go no further in considering the substantive application itself. Having said that, however, I comment that before me on 8 May 2017 no submissions were advanced from Mr Henderson or otherwise directed at this particular application. I have, nevertheless, regarded Mr Henderson’s submissions with respect to his 10 October
2016 application to review Associate Judge Osborne’s 4 October 2016 recusal
decision as applying also to this application.
[71] For the brief reasons I outline above at paras [47]-[53] I express the view that if this Court did have jurisdiction to consider the present review application, I would also be satisfied here that there was no reviewable error in Associate Judge Osborne’s decision of 28 February 2017. Mr Henderson’s contention in this review application that Associate Judge Osborne erred in his application of the “Saxmere” test and he “failed to take into account the possibility of subconscious bias” here was not in any way borne out by submissions advanced before me. Associate Judge Osborne’s primary findings first, that the legal test for apparent bias in Saxmere was not made out and secondly, that he would be bringing an impartial mind to the proceedings before him, were not impugned in any way here. The present review application would therefore be dismissed on these grounds as well.
(3) CONCLUSION
[72] For all the reasons I have outlined above, the applications by Mr Henderson
first, dated 10 October 2016 to review Associate Judge Osborne’s recusal decision of
4 October 2016 and secondly, dated 15 March 2017 to review Associate
Judge Osborne’s further recusal decision dated 28 February 2017 are dismissed.
[73] As to costs, I see no reason why costs should not follow the event in the usual way. Costs are therefore awarded to the Official Assignee with respect to this matter
to be paid by Mr Henderson on a category 2B basis together with disbursements as fixed by the Registrar.
...................................................
Gendall J
Solicitors:
Anthony Harper, Christchurch
Copy to Mr Henderson
0
6
0