Jones v New Zealand Bloodstock Finance and Leasing Limited
[2021] NZHC 3371
•9 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-002267
[2021] NZHC 3371
BETWEEN GREGORY JOHN JONES
Plaintiff
AND
NEW ZEALAND BLOODSTOCK FINANCE AND LEASING LIMITED
First Defendant
NEW ZEALAND BLOODSTOCK LIMITED
Second DefendantPETER VELA
Third DefendantDANIEL ROLSTON
Fourth Defendant…/2 cont’d
Hearing: 8 December 2021 (by telephone) Appearances:
G J Jones in Person
Judgment:
9 December 2021
JUDGMENT OF VENNING J
Recusal and Recall
This judgment was delivered by me on 9 December 2021 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors/Counsel: Greg Jones, Auckland
JONES v NZ BLOODSTOCK FINANCE AND LEASING LIMITED [2021] NZHC 3371 [9 December 2021]
DAVID ELLIS
Fifth Defendant
DEAN HAWKINS
Sixth Defendant
SEAN HAWKINS
Seventh Defendant
CAMBRIDGE VET SERVICES LIMITED
Eighth Defendant
CRAIG LAWRENCE
Ninth Defendant
BRUCE GRAY
Tenth Defendant
HELEN RICE
Eleventh Defendant
SIMON MOORE
Twelfth Defendant
PHEROZE JAGOSE
Thirteenth Defendant
THE ATTORNEY-GENERAL OF NEW ZEALAND
Fourteenth Defendant
CHRISTINE MEECHAN
Fifteenth Defendant
GARY HARRISON
Sixteenth Defendant
UNKNOWN DEFENDANTS
Seventeenth Defendant
Introduction
[1] In a judgment delivered on 29 November 2021 the Court made various orders under r 5.35B as it was satisfied the proceeding Mr Jones had filed was plainly an abuse of process.1
[2] Mr Jones seeks to recall that decision and as a preliminary matter seeks that I be recused from hearing the application for recall on the basis of bias.
Procedural matters
[3] Mr Jones initially supported his application to recall and recusal with a memorandum dated 2 December 2021. The Court responded with a minute of 3 December 2021 in which it indicated that:
[3] I have considered Mr Jones’ request that I recuse myself. The presumptive starting point on an application for recall is that the application will be heard by the Judge or Court that delivered the judgment. There is no reason to depart from that practice in this case. There is no principled basis upon which I should recuse myself from dealing with the recall application.
[4] Mr Jones then filed a further memorandum of submissions dated 7 December 2021, accompanied by an affidavit of the same date to support the application for recusal and recall. The Court convened a telephone conference with Mr Jones to hear those applications on 8 December 2021.
[5] At the outset of the conference Mr Jones requested clarification of two points. First, whether the call was recorded. Mr Jones said that in a previous proceeding in the District Court a telephone conference had been recorded without his knowledge. I confirmed to Mr Jones that the call was not recorded. He accepted that.
[6] Next, Mr Jones asked for a copy of the written referral by the Registrar under High Court Rule 5.35A. The Court confirmed to Mr Jones that there was no written referral. In accordance with r 5.35A the proceeding had been accepted for filing but the Registrar had brought the file to my Chambers and referred it to me for
1 Jones v NZ Bloodstock Finance & Leasing Ltd [2021] NZHC 3220.
consideration on the basis that on the face of the proceeding it was plainly an abuse of process and so asked for my consideration of it under r 5.35A and B.
[7] Mr Jones asked why the Registrar considered the proceeding to be an abuse of process. I confirmed to Mr Jones that there was no written record of the Registrar’s reasons for referral. The referral was made in accordance with r 5.35A in that, on the face of the proceeding, the Registrar believed it to be plainly an abuse of process. It was for that reason it was referred to a judge to be considered in accordance with that rule.
[8] Mr Jones then raised the issue of recusal. In light of the comments in the minute of 3 December 2021 Mr Jones asked if the Court had made a decision on recusal. I indicated to Mr Jones that I had considered his further written submissions of 7 December 2021 in support of the request for recusal and asked Mr Jones if he wished to advance anything further on that issue. Mr Jones did not but asked the Court to deal with the issue of recusal.
[9] I advised Mr Jones that his application that I recuse myself from dealing with the issue of recall was dismissed and that my reasons would follow. I then invited Mr Jones to address the Court on his recall application. Mr Jones submitted that he could not and would not deal with the application for recall until he had full written reasons in relation to the recusal.
[10] I advised Mr Jones the Court was not prepared to adjourn the application for recall further and that the Court intended to deal with the application for recall. I further advised Mr Jones this was his opportunity to address the Court in relation to recall if he wished to. Mr Jones declined to deal with the matter on that basis.
[11]In the circumstances the call was terminated.
[12] Following the hearing Mr Jones filed a memorandum recording his position. I do not comment on Mr Jones’ further memorandum, save to clarify that at para 6 the correct position is that the Court indicated that if Mr Jones did not wish to address the issue of recusal further, as the Court had had the opportunity to consider his further
written submissions in support of recall, the Court confirmed the application for recusal was declined with reasons to follow.
[13] This judgment deals with the Court’s reasons in relation to the recusal and also with the recall application on the basis of Mr Jones’ written submissions for recall.
Recusal
[14] Mr Jones submits that the Court’s “lack of care and understanding of such an important matter” provided the foundation for his application for recusal. Added to that were, in his words, the “gratuitous, malicious statements in relation to [‘Mr Jones’] competence and state of mind”.
[15] Mr Jones referred to the cases of Mistral International Pty Ltd v Polstead Pty Ltd and Damjanovic v Sharp Hulmes & Co, cases of the New South Wales Court of Appeal, to support the submission that adverse observations by a judge in relation to a party’s case or witnesses may lead to disqualification.2
[16] Further, he also submitted that the existence of a significant number of defects in the judgment (relevant to the recall application) give rise to a clear inference of bias.
[17] In his accompanying affidavit Mr Jones set out reasons for his dissatisfaction with a significant element in society, including some members of the judiciary. He submitted that the Court’s comments in the r 5.35B decision indicated the Court was more concerned with the reputation of the judiciary than providing him with a fair opportunity to pursue his claims.
[18] The principles to apply on a recusal application are settled. They are confirmed in the Judicial Guidelines and in Saxmere Co Ltd v Wool Board Disestablishment Co
2 Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321; and Damjanovic v Sharp Hume & Co [2001] NSWCA 407.
Ltd and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No. 2).3 A judge should disqualify him or herself:4
[3] … “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”.
[4]… Two steps are required:
(a)First, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)Secondly, there must be ”an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
[5] The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias.
[19] The issue in the present case is whether a fair-minded lay observer might reasonably apprehend the Court might not bring an impartial mind to the resolution of the question of whether the judgment delivered under r 5.35B should be recalled.
[20] The starting point in relation to that is that obviously the Court is being asked to review and consider recall of its own decision. An objective and informed lay observer would be aware that such applications are generally dealt with by the Judge who issued the decision. As the High Court Commentary to McGechan to the High Court Rules notes:5
Implicit in the three categories identified in Nash, where recall may occur, is that it is recall by the trial Judge.
[21] For the reasons that follow on the recall decision, to the extent that recusal is based on the judgment being wrong in law and contains the defects that Mr Jones says
3 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No. 2) [2009] NZSC 122, [20210] 1 NZLR 76.
4 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 3, at [3]–[5].
5 Andrew Beck and others McGechan on Procedure (online ed, Brookers) [at HR11.9.01(8)].
exist, then Mr Jones’ remedy is an appeal. The judgment must stand for better or worse until reversed on appeal.
[22] To the extent the application for recusal relies on the Court’s statement that: “The affidavit of Mr Jones is concerning in a number of respects. It raises substantial issues as to his competence and current state of mind,”6 the present case is quite different to that of the cases he relies on of Mistral International Pty Ltd and Damjanovic.7 In Mistral a judge had rejected evidence of an expert witness without providing proper reasons and had also rejected evidence of two lay witnesses on a spurious basis. The New South Wales Court of Appeal concluded the conduct of the Judge throughout the course of the trial was such as might have led a fair-minded lay observer reasonably to apprehend the judgment was affected by bias.
[23] In the Damjanovic case the New South Wales Court of Appeal accepted there was proper concern about the way the Judge had conducted the trial in the particular circumstances of that case where the plaintiff was not legally represented, did not have English as his or her first language, and was openly sceptical of lawyers.
[24] In the present case the Court’s observations were based on the contents of Mr Jones’ own affidavit. A reasonable objective reader of the judgment and Mr Jones’ affidavit would conclude the observations of the Court were moderate and were made out of concern for Mr Jones, rather than an unwarranted personal criticism suggestive of bias.
[25] Mr Jones also raised the issue that the application under rr 5.35A and 5.35B was dealt with without him having the opportunity to be heard. As he acknowledged, however, r 5.35B(3) confirms that r 7.43(3) which provides for a hearing on an interlocutory application is excluded. The Court is not required to give the plaintiff an opportunity to be heard. If the Court wished to hear from the plaintiff before dealing with the matter it would be open to the Court to do so but the Court is not obliged to do so. The Court advised Mr Jones of his right to appeal as was required by r 5.35A(3).
6 Jones v NZ Bloodstock Finance & Leasing Ltd, above n 1, at [30].
7 Mistral International Pty Ltd v Polstead Pty Ltd, and Damjanovic v Sharp Hume & Co, above n 2.
[26] Mr Jones has failed to identify any connection between the matters he refers to and any objective concern that could be held by a fair minded lay observer that the Court would not consider the recall application on its merits.
[27]For those reasons the Court declined Mr Jones’ application for recusal.
Recall
[28] As Mr Jones declined to engage further with the Court on the issue of the recall I deal with that application on the basis of the matters advanced by Mr Jones in his application, supporting memorandum and further affidavit.
[29] The principles to apply on an application for recall are well settled. They were established by Wild CJ in Horowhenua County v Nash (No. 2):8
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. … There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[30] In his application Mr Jones seeks to recall the judgment on the grounds the following amount to special reasons:
(a)the Court failed to determine an issue properly put in the proceedings;
(b)the Court misapprehended the case to be made by the plaintiff;
(c)the Court reached conclusions without any possible basis for doing so and made personal statements in relation to the plaintiff which indicated a bias;
(d)the Court chose not to consider the plaintiff’s claim against the defendant Moore J and make comments in relation to that claim so as
8 Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633.
to avoid publication of the allegations against Moore J in a similar manner to that in which Jagose J conducted himself in an earlier proceeding;
(e)The decision is intentionally calculated to remove from the plaintiff his rights to recourse in breach of the New Zealand Bill of Rights Act 1990.
[31] Mr Jones submits that the Court made a basic error and did not understand the nature of the claim made against the defendants. He submits that the Court struck out the causes of action against the tenth to seventeenth defendants without understanding the claim made against them or acknowledging its existence. Mr Jones is correct that at [2] of the judgment the Court did not refer to the claim of conspiracy alleged against all defendants. However, the balance of the decision at [9] to [11], [18] and following paragraphs make it clear the Court was aware the claim of conspiracy was raised against all defendants.
[32] Next, he submits that the Court misunderstood the nature of the requirement for proof of an agreement in relation to conspiracy and that the judgment was totally lacking in how it dealt with the conspiracy claims. As noted, the Court was aware of and dismissed the conspiracy claim as pleaded. It gave reasons for doing so at [24] to [33]. Mr Jones’ challenge is to the merits of the decision. If the decision was wrong then the remedy is an appeal.
[33] As to the strike out of the claims against Jagose J, Mr Jones refers to a senior counsel’s criticism of the decision the Court referred to of Attorney-General v Chapman.9 Again, that is a challenge to a matter of law. In any event there is no suggestion the Supreme Court decision is not the current law in New Zealand.
[34] Mr Jones then traversed in some detail the merits of the claims he proposed to make. In summary, Mr Jones submits that the decision under r 5.35B is so tainted it would be inappropriate to cut and paste any judgment so that the judgment should be rewritten with the reconsideration of the issues again. An application for recall is not an opportunity for a party in Mr Jones’ position to recast and repeat his claim.
9 Attorney-General v Chapman [2011] NZSC 110.
[35] Mr Jones is correct the Court did not refer to the allegations and evidence concerning Moore J. Nor did it refer to the detailed allegation and evidence concerning Mr Gray or Ms Meechan. The passages referred to in the judgment were cited as examples of the deficiencies in the pleading which were not assisted by Mr Jones’ affidavit evidence in support.
[36] Mr Jones next submitted that very special reasons existed for recall because of the Court’s comments, in relation to his competence and state of mind. The Court was properly concerned as to Mr Jones’ competence and mental state in light of the material in Mr Jones’ affidavit. The expression of concern is not a special reason supporting recall.
[37] The decision does not, as Mr Jones submits, prevent him from pursuing his rights. He can replead in proper form.
[38] Mr Jones’ failure to satisfy the Court that any of the criteria in Nash are made out.10 There has been no amendment to a relevant statute or new judicial decision of relevance or failure by Mr Jones to refer the Court to any such matter. Nor is there any other very special reason to recall the decision.
[39]The application for recall must be dismissed.
Result
[40](a) The application for recusal is dismissed.
(b) The application for recall is dismissed.
Venning J
10 Horowhenua County v Nash (No. 2), above n 8.
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