Havenleigh Global Services Limited v Henderson

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-409-000559 [2016] NZHC 2356

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:

26, 27 September 2016

Appearances:

J Foster and C R Vinnell for Official Assignee
D I Henderson (bankrupt) in person

T Cooley as counsel assisting the court (present but not making submissions on this application)

Judgment:

4 October 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to recusal

Introduction

[1]      David Ian Henderson was adjudicated bankrupt on 29 November 2010 and was to have been automatically discharged from bankruptcy in January 2014.

[2]      The Assignee  in  November  2013  filed  an  objection  to  Mr  Henderson’s

discharge,  pursuant  to  s  292  Insolvency Act  2006  (the Act).    As  a  result,  Mr

Henderson was required to be publicly examined under s 295 of the Act.

HAVENLEIGH GLOBAL SERVICES LIMITED v HENDERSON [2016] NZHC 2356 [4 October 2016]

[3]      I was the Associate Judge to whom the conduct of the public examination was allocated.  I have since conducted a public examination of Mr Henderson which I adjourned in October 2015 for final submissions.

The recusal application

[4]      On 18 April 2016, when the hearing of final submissions was pending, Mr Henderson filed an application for an order that I be recused from further conducting the public examination.1  The matters he raises may be grouped under four heads:

(a)       Issue  1  –  my  previous  involvement  in  litigation  against  Property

Ventures Investments Ltd;

(b)      Issue 2 – my conduct of the public examination;

(c)       Issue 3 – my receiving a letter from Graeme Thorne; (d)        Issue 4 – my conversation with a District Court Judge.

[5]      The Assignee opposes the recusal application.

Recusal for apparent bias – the law

[6]      As  summarised  by  Professor  Philip  Joseph,  apparent  bias  arises  when  a decision-maker  has  some  personal  or  professional  relationship  with  a  party  or witness, or a prejudice against or preference towards a particular party or result, or a predisposition leading to a predetermination of the issues.2

[7]      The Supreme Court in Saxmere Company Ltd v Woolboard Disestablishment

Company Ltd (Saxmere (No 1)) dealt definitively both with the definition and the test of apparent bias.3

1      Mr Henderson’s grounds of application included a reference to “actual bias”.  Mr Henderson did not, in his written synopsis, develop any submission as to actual bias. He confirmed to the Court at the start of his oral submissions that he was resting his submissions on apparent bias.

2      Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at 1076, adopted in R v Gan [2016] NZHC 2031 at [8].

3      Saxmere Company Ltd v Woolboard Disestablishment Company Ltd [2009] NZSC 72, [2010] 1

NZLR 35 [Saxmere (No 1)].

[8]      The  test  for  apparent  bias  is  whether  a  fair-minded  lay  observer  might reasonably apprehend that…