Henry v Henry
[2024] NZHC 312
•26 February 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001888
[2024] NZHC 312
UNDER Trusts Act 2019 and Part 19 of the High Court Rules 2016 IN THE MATTER OF
The Boucanier Trust
BETWEEN
COLIN HENRY as trustee and discretionary beneficiary of the BOUCANIER TRUST Applicant
AND
LORRAINE ALTHEA HENRY (aka LORRAINE ALTHEA MORGAN aka ‘SHELLEY’
Respondent
Hearing: 8 February 2024
Further submissions: 19 February 2024 (from C Henry)
Appearances:
Applicant in Person (via VMR) R J Macdonald for Respondent
Judgment:
26 February 2024
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 26 February 2024 at 3.30 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………..
HENRY v HENRY [2024] NZHC 312 [26 February 2024]
Introduction
[1] The applicant, Mr Colin Henry, applies for an order recalling the judgment of Davison J of 6 September 2023, awarding costs (2B scale costs) of $17,818 against him.
[2] Mr Henry contends that the judgment, determined on the papers, be recalled for the following “very special grounds”:
(a)the judgment awards costs of $3,585 to the respondent for preparation of written submission despite no such submissions being prepared and filed by or for her;
(b)Davison J ought not to have determined the costs application because of the appearance of bias (not actual bias); and
(c)in any event, Davison J lacked the necessary judicial authority to determine the costs application because he had no judicial warrant at the time that he purported to carry out that determination.
[3] The costs judgment arose out of an application by Mr Henry against his former wife for an order removing her as a trustee of their family trust, the Boucanier Trust. Mr Henry discontinued the substantive proceedings and the parties were unable to agree on costs. The parties then filed and served submissions on the issue of costs and Davison J determined the matter without a hearing (i.e. on the papers).
Background
[4] Mr and Mrs Henry married in 2001 and divorced in 2021. They have one child together.
[5] The family home they lived in prior to separating was owned by the Boucanier Trust.
[6] In March 2021, Mrs Henry issued a claim in the Family Court seeking orders under the Property (Relationships) Act 1976 and s 182 of the Family Proceedings Act 1980.
[7] On 30 September 2022, Mr Henry filed the application in this Court seeking to have Mrs Henry removed as a trustee of the Boucanier Trust.
[8] In his costs judgment of 6 September 2023, Davison J held that the presumption in r 15.23 of the High Court Rules (i.e. that costs are to be borne by the discontinuing party) had not been displaced and that Mrs Henry should be awarded costs. He rejected an application for increased costs by Mrs Henry pursuant to r 14.6(3) of the High Court Rules.
Relevant legal principles
[9] The Court of Appeal in Banks v Farmer,1 recently confirmed the general rule that a judgment, once delivered, must stand for better or worse subject to appeal. Recall of a judgment (other than under the slip rule) will only be made in exceptional circumstances:2
(a)Where, since the hearing, there has been an amendment to a relevant statute or regulation, or a new judicial decision of relevance in high authority;
(b)Where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or
(c)Where for some other very special reason justice requires that the judgment be recalled.
1 Banks v Farmer [2023] NZCA 607 at [7].
2 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
[10] The third category, the only one of relevance here, is intended to be narrow.3 Recall is not an appropriate means of correcting error.4
Analysis and decision
[11] Mr Henry emphasised the cumulative effect of the three errors which together, he maintains, amounts to a very special reason to recall the judgment.5
Issue (a) – Allowance of $3,585 for preparation of written submissions
[12] This ground is without merit. It may be that submissions were never filed or served during the currency of the substantive proceedings. However, it is clear from the affidavit filed on behalf of Ms Henry by Ms Hollie Tindale, that submissions were prepared. The draft submissions are attached to Ms Tindale’s affidavit and it is clear that substantial time would have been spent in preparing them. The time allocations in Schedule 3 refer at item 40 to the “preparation of written submissions”.6 There is no basis for concluding that Davison J was in error in awarding costs for preparation of submissions. The “ghost” submissions claim is rejected.
[13] In any event, the time to challenge an opposing party’s calculation of scale costs is before the costs judgment is given, not afterwards by way of a recall application.7
Issue (b) – Apparent bias
[14] Mr Henry contends that Davison J, when he was a practicing barrister some 20 years ago, acted for a defendant party against Mr Henry in proceedings brought by him against Mr Davison’s then client. The defendant client was then a QC and latterly became a Family Court Judge. Mr Henry says that the proceedings were acrimonious,
3 Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23]; see also Banks v Farmer, above 1, at [7].
4 Unison Networks Ltd v Commerce Commission, above n 3, at [40].
5 In his submissions in reply dated 18 February 2024, Mr Henry referred at [4] to the “principal substantive pillars” on which his application rests: (i) apparent bias, and (ii) lack of judicial warrant.
6 See Arnold v Fairfax [2016] NZHC 1078 at [18].
7 Hawken Lane Development LP v Property Sales Direct Ltd [2021] NZHC 2051.
and they placed him in a difficult position; he was a barrister, suing a Queen’s Counsel who subsequently became a Family Court Judge.
[15] Mr Henry says that it was only after Davison J had delivered the impugned costs decision that he discovered that the Judge was the same Paul Davison QC who had acted in the earlier proceedings against Mr Henry. Mr Henry said he was never provided with the opportunity to seek Davison J’s recusal.
[16] Section 171 of the Senior Courts Act 2016 requires the Chief High Court Judge, in consultation with the Chief Justice, to develop and publish recusal guidelines for the High Court. The general principles of those recusal guidelines provide:
(a)A Judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist;
(b)A 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;
(c)The standard for recusal is one of “real and not remote possibility” rather than probability;
(d)The test is a two-stage one. The Judge must consider:
(i)first, what it is that might possibly lead to a reasonable apprehension by a fully informed observed that the Judge might decide the case other than on its merits; and
(ii)second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.
[17] As Blanchard J held in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, when the court has examined the issue of the possible appearance of bias “the court is
not making a judgment on whether it is possible or likely that the particular judge was in fact affected by disqualifying bias”.8 The standard is that:9
… subject to qualifications relating to waiver or necessity, a Judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” … That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal (in the present case, the Court of Appeal) be independent and impartial.
[18] The observer in question is presumed to be intelligent, objective, reasonably informed about the workings of the judicial system and not unduly suspicious.10 Moreover, he or she taken to understand that a judge is expected to be independent in decision-making.11
[19] An objective observer would also note the judicial oath to independently and impartially decide cases on the basis of the evidence presented in court. Furthermore, he or she would understand that judges are accustomed to putting aside extraneous matters.12
[20] I find that the test for apparent bias is not made out; a fair-minded lay observer would not reasonably apprehend that Davison J might not bring an impartial mind to the resolution of the costs issue. The interaction between Mr Paul Davison QC (as he then was) and Mr Henry took place some 20 years ago. There has been no contact since that time. Furthermore, Davison J was deciding a relatively straightforward matter on the papers. In all the circumstances, there is no logical and sufficient connection between the apprehension of bias and the now very remote circumstances of a limited interaction. The earlier proceedings brought by Mr Henry might have been acrimonious but that is not unusual for experienced Judges and lawyers such as Davison J.
8 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72 at [10].
9 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 8, at [3].
10 P v Q [2018] NZHC 2647 at [26].
11 P v Q, above n 10, at [26].
12 Siemer v Heron [in recusal] [2012] 1 NZLR 293 at [23].
Issue (c) – Alleged lack of judicial warrant
[21] Davison J retired as a High Court Judge in late 2021. The Attorney-General then appointed him to act as a High Court Judge for a term of 15 months, taking effect from 8 November 2021 to 1 February 2023. The Attorney-General then appointed him to act as a High Court Judge for a further six months, over the period 2 February to 31 August 2023.
[22] The costs judgment at issue was delivered on 6 September 2023. Mr Henry says that Davison J did not have a judicial warrant at the time and acted without authority.
[23]Section 177(2) of the Senior Courts Act 2016 provides that:
A judicial officer whose term of office has expired or who has retired may continue in office for the purpose of completing the hearing of a matter, or determining or giving judgment in proceedings, that the judicial officer has heard either alone or with others.
[24] The substantive Trusts Act 2019 application by Mr Henry had been set down for a hearing on Wednesday, 19 July 2023. Mr Henry filed his notice of discontinuance on 24 May 2023. He then filed a costs memorandum responding to the respondent’s costs memorandum. Both costs memoranda were filed and served prior to the termination of Davison J’s warrant on 31 August 2023.
[25] In those circumstances I see no basis for contending that Davison J determined the matter without proper judicial authority. On any sensible application of s 177(2) of the Senior Courts Act 2016, Davison J continued in office for the purpose of completing the outstanding costs application. He was determining the matter on the papers which, in my view, was a matter that he had heard in the manner contemplated by s 177(2).
Conclusion
[26] I find that none of the grounds for the recall application have been made out. Mr Henry has failed to establish that there are “very special grounds” for the costs judgment to be recalled – and there are no “combination of factors” to assess.
[27]The application for recall is accordingly dismissed.
Result
[28] The application for recall is dismissed. I order the applicant, Mr Henry, to pay costs to the respondent on a 2B basis plus disbursements.
Andrew J
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