Jones v New Zealand Bloodstock Finance and Leasing Ltd

[2022] NZHC 93

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002267

[2022] NZHC 93

BETWEEN

GREGORY JOHN JONES

Plaintiff

AND

NEW ZEALAND BLOODSTOCK FINANCE AND LEASING LIMITED

First Defendant

NEW ZEALAND BLOODSTOCK LIMITED
Second Defendant

PETER VELA
Third Defendant

DANIEL ROLSTON
Fourth Defendant

…/2 cont’d

Hearing:	(On the papers)
Judgment:	4 February 2022

JUDGMENT OF VENNING J

Recusal/Leave

This judgment was delivered by me on 4 February 2022 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:           Greg Jones, Auckland

JONES v NEW ZEALAND BLOODSTOCK FINANCE AND LEASING LIMITED [2022] NZHC 93 [4

February 2022]

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]                 Mr Jones has filed a further application on this file which the Registrar has referred to me. In the application dated 27 January 2022 Mr Jones applies for the following orders:

(a)that the application not be heard by me;

(b)that leave be granted to appeal my decision dated 9 December 20211 refusing Mr Jones’ application to recuse myself from hearing his application for a recall; and

(c)that leave be granted to appeal my decision dated 9 December 20212 refusing to make an order recalling an earlier judgment of 29 November 2021.3

[2]                 As noted, the Registrar referred the file to me. That is the usual procedure when an application for leave to appeal is filed.

[3]                 The procedural history to this case is relevant. It can be stated shortly. Mr Jones filed a statement of claim on 16 November 2021, together with an application for interim injunction which was accompanied by an affidavit. The Registrar referred the proceeding to me under r 5.35A, High Court Rules 2016. Having reviewed the proposed proceedings, the application for interim injunction and affidavit in support the Court made the following orders under r 5.35B on 29 November 2021:4

[34]      The claims against Jagose J and the Attorney-General in the fifth and sixth causes of action are struck out as an abuse of process.

[35]      The claims against the tenth to seventeenth defendants in the first to fourth causes of action are also struck out as an abuse of process.

[36]      The claims against the first to ninth defendants are stayed pending an amended pleading in proper form being filed against those defendants.

1      Jones v NZ Bloodstock Finance and Leasing Ltd [2021] NZHC 3371.

2      Above n 1.

3      Jones v NZ Bloodstock Finance and Leasing Ltd [2021] NZHC 3220.

4      Jones v NZ Bloodstock Finance and Leasing Ltd, above n 3.

[37]      Before any such amended claim is accepted and released for service it is either to be confirmed by a Queen’s Counsel as a proper pleading or if not, it is to be referred to a judge of this Court and to be approved by a judge of this Court.

[38]      The stay will remain in place until 31 March 2022. In the event that no amended claim is filed satisfying the above requirement by that date the claim against the first to ninth defendants will also be struck out with no further action required.

[39]      In accordance with r 5.35B(3) Mr Jones is advised of his right of appeal to the Court of Appeal against this decision.

[40]      In accordance with r 5.35B(4) a copy of this decision is to be provided to the defendants.

[4]                 On 2 December 2021 Mr Jones filed an application to recall the judgment. He also sought an order that I be recused from hearing the application on the basis of bias against him.

[5]                 Following a telephone hearing on 8 December 2021 the Court delivered a judgment on 9 December 2021 declining Mr Jones’ application that I recuse myself and dismissing the application for recall.5

[6]                 Mr Jones subsequently, on 17 January 2022, appealed the decision of 29 November 2021 and the orders made under r 5.35B.6

[7]As noted, Mr Jones then filed the above application.

Form of dealing with the application

[8]                 Generally a hearing date will be allocated by the Registrar for an interlocutory application.7 However, as Miller J noted in The Party Bus Company Limited v The Attorney-General a hearing is not always required for interlocutory applications, particularly where the application is for leave to appeal.8 As the Judge said:9

On occasions the objective of the Rules can be met by a decision on the papers. A hearing is frequently unnecessary on a leave to appeal application because

5      Jones v NZ Bloodstock Finance and Leasing Ltd, above n 1.

6      CA19/2022.

7      High Court Rules 2016, r 7.33.

8      The Party Bus Company Limited v The Attorney-General [2012] NZHC 445.

9 At [7].

the judge is already familiar with the file and such applications are usually of narrow compass. They turn on the usually straightforward question whether there is an issue of sufficient importance to warrant the attention of the Court of Appeal.

[9]                 In the present case I have determined the applications do not require a hearing, particularly given the procedural background and the extant appeal before the Court of Appeal.

[10]            The procedural background is important. The original decision of this Court was made under rr 5.35A and 5.35B which expressly confirm the Court can make the orders without a hearing.10  It would subvert the intention underlying those rules and r 1.2 generally if, following a decision under r 5.35B, a litigant whose proceedings were stayed as frivolous or vexatious could file repeated subsidiary applications in the High Court and require hearings on them. The limited resources of the Court should be applied to applications which genuinely require hearing time. The litigant’s right of access to justice and the Court is preserved by their right to appeal to the Court of Appeal against the decision under r 5.35B.

[11]For those reasons I deal with Mr Jones’ application on the papers.

Recusal

[12]            The allegations of bias were and are, general and are apparently based on Mr Jones’ subjective view of the merits of the original decision and his perception of my intention to deny him his rights of access to justice.

[13]            The principles applying to recusal are well settled.11 They include that the fact a judge has dealt with the case or the parties previously does not require recusal.

[14]            As noted by Miller J in The Party Bus Company Limited v The Attorney- General case, it is common practice for the judge who made the decision to deal with any subsequent application for leave to appeal.12

10     High Court Rules 2016, r 5.35B(3)..

11     Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA)

12     The Party Bus Company Limited v The Attorney-General, above n 8.

[15]            A fair-minded and fully informed observer having knowledge of the material before the Court and the relevant principles would not be concerned the Court would not bring an impartial mind to the issues raised in the current application and determine them otherwise than on their merits.

[16]            I decline Mr Jones’ application for the application to be referred to another Judge to deal with it.

Leave to appeal

[17]            That leaves the application for leave to appeal the decisions of 9 December 2021 refusing to recuse myself and declining to recall the judgment of 29 November 2021. Leave is required to appeal those interlocutory decisions under s 56(3) of the Senior Courts Act 2016.

[18]            In the case of Greendrake v The District Court of New Zealand the Court of Appeal cited the following considerations as relevant to an application for leave to appeal:13

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the circumstances must warrant incurring further delay; and

(e)the ultimate question is whether the interests of justice are served by granting leave.

[19]            Previously, in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd the Court of Appeal had noted that applications for leave turn on the usually straightforward question of whether there is an issue of sufficient importance to warrant the attention of the Court of Appeal.14 Further, the overriding

13     Greendrake v The District Court of New Zealand [2020] NZCA 122, at [6].

14     Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355.

purpose of the requirement for leave is to limit cases which may go on appeal in the interests of finality of litigation and workload of the Court.15

[20]In support of his application for leave Mr Jones says:

(a)there is good reason to consider the issues raised in the appeal before dealing with any further issues in the substantive proceedings;

(b)that the issues under appeal are sufficiently meritorious in substance and relate to sufficiently important issues so as to outweigh the cost and delay of appeal;

(c)that Venning J was motivated by bias when delivering his judgment of 9 December 2021;

(d)that Venning J failed to determine issues properly put in the proceedings;

(e)that Venning J misapprehended the case to be made by the plaintiff;

(f)that Venning J reached factual and legal conclusions and made personal statements in relation to the plaintiff without any foundation and were motivated by bias;

(g)that Venning J refused to provide adequate reasons for his decision;

(h)that Venning J’s decision was intentionally calculated to remove from the plaintiff his rights to recourse in the courts in breach of the Bill of Rights Act 1990.

[21]            The reasons given above in relation to recusal on this application are also relevant to Mr Jones’ application for leave in relation to the earlier recusal application

15     Sandle v Stewart [1982] 1 NZLR 708 (CA).

and referred to as his ground (c) above. The grounds cited at (d) to (h) are all grounds Mr Jones can raise in his substantive appeal against the original substantive decision.

[22]            The object of Mr Jones’ application to recall was to reverse the decision of the Court applying the provisions of r 5.35A and r 5.35B to his proposed proceedings. That objective can be attained in the course of the substantive appeal which Mr Jones has brought.

[23]            In the event Mr Jones’ appeal is successful then the substantive issues of concern to him will be addressed and the orders made under r 5.35B will be varied or set aside.

[24]            In the event Mr Jones is unsuccessful on the appeal and the orders  under      r 5.35B are maintained then there would have been no point in the Court of Appeal engaging with the preliminary issue of whether the judgment of 29 November 2021 should have been recalled.

[25]            Further, there are no issues of public importance raised in the above grounds. For instance, as noted, the principles relating to recusal are well established.

[26]            I do not accept Mr Jones’ grounds (a) and (b) are made out. There is no good reason why the Court of Appeal should be required to consider the merits of Mr Jones’ challenge to the decision declining recusal and declining to recall the decision under r 5.35B when the substantive merits of that decision will be dealt with in the course of the appeal filed and already before that Court.

[27]            Mr Jones fails to satisfy the Court that the issues he seeks to raise are seriously arguable or are of sufficient importance to warrant an appeal from what are effectively subsidiary interlocutory decisions, when the substantive issues will be dealt with by the Court on the appeal itself.

Result/orders

[28](a)       I decline the application that I recuse myself from dealing with the application.

(b) The applications for leave to appeal the decisions of 9 December 2021 refusing Mr Jones’ application for recusal and declining to recall the judgment are both dismissed.

Venning J