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 personT 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…
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- [2016] NZHC 2356
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