Jones v Stace Hammond Lawyers
[2022] NZHC 884
•29 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-001313
CIV 2021-404-001621
[2022] NZHC 884
UNDER Section 124 of the Districts Courts Act 2016 BETWEEN
GREGORY JOHN JONES
Appellant
AND
STACE HAMMOND LAWYERS
Respondent
Hearing: 12 April 2022 (by telephone conference) Appearances:
Appellant in person
G H J Brant for the Respondent
Judgment:
29 April 2022
JUDGMENT OF VAN BOHEMEN J
[Application for leave to appeal]
This judgment was delivered by me on 29 April 2022 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Greg Jones, Barrister, Auckland Stace Hammond Lawyers, Auckland
GREGORY JOHN JONES v STACE HAMMOND LAWYERS [Application for leave to appeal] [2022] NZHC 884 [29 April 2022]
Introduction
[1] Mr Jones seeks leave to appeal my decision of 27 January 2022 dismissing his appeal against the decision of the District Court entering summary judgment against him in the sum of $14,900.00, plus interest and costs, for fees owing to Stace Hammond Lawyers.1 Mr Jones also seeks leave to appeal my decision in that judgment dismissing his application to adduce further evidence on appeal. Mr Jones also seeks leave to file his notice of appeal out of time.
[2] Mr Jones also applied that I should recuse myself from hearing his applications on the grounds that a fair minded lay observer would conclude that I would not bring an impartial mind to the resolution of his applications.
[3] I declined the recusal application in my minute dated 8 April 2022 issued prior to the hearing on 12 April 2022.2 Nonetheless, Mr Jones made submissions at that hearing on why he considered I should recuse myself and why I should give reasons for my decision.
[4] Stace Hammond opposes all of Mr Jones’s applications and says I should not recuse myself.
Recusal
[5] Given the vigour with which Mr Jones addressed the recusal question, I consider it appropriate to set out why, as stated in my minute of 8 April 2022, I saw no reason to depart from the usual practice that an application for leave to appeal a judgment is heard by the Judge or Court that issued the judgment in respect of which leave to appeal is sought, and that I did not accept there was any principled basis upon which I should recuse myself from dealing with the applications.
1 Jones v Stace Hammond Lawyers [2022] NZHC 47.
2 Jones v Stace Hammond Lawyers Auckland HC CIV-2021-404-1313 8 April 2022.
Mr Jones’s submissions
[6] Mr Jones says that my judgment shows that I am biased. He refers to my description of the material included in his affidavit of 26 October 2021 as “bizarre.” He also points to my referencing a concern expressed by Venning J in a judgment in a separate proceeding as to Mr Jones’s competence and state of mind because of the nature of similar material put forward by Mr Jones in that proceeding. Mr Jones also says I paid scant regard to the facts and misread the evidence of Dr Francois-Rene Bertin, a specialist in equine internal medicine which Mr Jones sought to put in evidence. Mr Jones says I referred disparagingly to Dr Bertin by describing him as a senior lecturer when, according to Mr Jones, he is an Associate Professor.
[7] Mr Jones says my judgment is patently and seriously flawed and constitutes a deliberate attempt to prevent him from his entitlement to litigate against parties. Mr Jones says I had no basis for reaching conclusions in relation to his competence and state of mind and that my comments are in breach of the Guidelines for Judicial Conduct. Mr Jones submits that it was inappropriate for me to decide his application for recusal and says I should have referred that application to another judge for decision. He refers to a background paper on Judicial Impartiality prepared by the Australian Law Reform Commission (the Background Paper).3 He says the Background Paper supports his view that his application for recusal should have been referred to another judge for decision and that I should have provided for reasons for my decision not to recuse myself.
Analysis
[8] The Recusal Guidelines for High Court Judges (the Guidelines) are annexed to this judgment.
[9]The first section of the Guidelines sets out general principles.
[10] The first general principle is that a judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist. The second general principle
3 Australian Law Reform Commission Background Paper J12: Judicial Impartiality – Recusal and Self-Disqualification March 2021; updated April 2021.
is that 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. The fifth general principle is that the question of recusal is for the judge hearing the case.
[11] The third general principle states that the standard for recusal is one of “real and not remote possibility,” rather than probability. The fourth general principle sets out the two-stage test to be applied by the judge. Under that test, the judge must consider:
(a)what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and
(b)whether there is a “logical and sufficient connection” between those circumstances and that apprehension.
[12] The Guidelines provide guidance as to the circumstances where judges should recuse themselves. They include situations where:
(a)a party, lawyer or witness is a close relative or domestic partner of the judge;
(b)the judge served as a legal advisor in respect of the matter in issue when in practice;
(c)the judge or a close relative or member of the judge’s household, directly or indirectly has an economic interest in the outcome of the proceedings;
(d)the case is to decide a point of law which may affect a judge in his or her personal capacity beyond that of the public generally;
(e)the value of a judge’s shareholding in a company would be affected by the outcome of the litigation;
(f)the judge has made public statements of firm opinion on the issue before the court.
[13] Mr Jones does not assert that any of those circumstances arises in the present case. I am also satisfied that no such circumstance arises. I have had few personal dealings with Mr Jones in my career and none in the past decade. Until I was assigned this case, I also had no prior knowledge of Mr Jones’s personal circumstances, including the issues he has had with respect to his bloodstock interests. Neither I nor anyone in my family has any financial interest in the bloodstock industry. Nor had I had any dealings with Stace Hammond.
[14] It was for these reasons that I concluded that there was no principled basis on which I should recuse myself from dealing with Mr Jones’s applications.
[15] The Background Paper provides no basis for departing from the approach set out in the Guidelines. It notes that commentators and judges have acknowledged that the procedure of judges, in relation to whom bias is alleged, deciding whether to recuse or disqualify themselves may be perceived as “strange” and “awkward.”4 As the Background Paper also notes, however, that is the procedure followed in many common law jurisdictions.5 New Zealand is one such jurisdiction, as is confirmed by the Guidelines.
[16] The Background Paper discusses whether other procedures might be adopted to avoid the inherent tension of judges making decisions on whether they are themselves biased.6 It notes that there are drawbacks as well as advantages to such a procedure. These include the risks of parties looking to create delay or engage in judge-shopping, and the increase in time and cost in having to bring in another judge to decide the application for disqualification.
4 At [5].
5 At [4].
6 [30] – [47].
[17] The Background Paper does not make any recommendations as to whether the current procedures in Australia should be changed. It acknowledges that the most widely called for reform is to have a different judge involved in the disqualification decision. It notes that the implications of such a reform were to be discussed in the Commission’s consultation meetings and in a consultation paper that was to be prepared. There is nothing before the Court, and there is nothing apparent on the Commission’s website,7 to indicate whether any final recommendations have been made to reform Australian law in this area.
[18] In summary, the Background Paper is informative and raises important issues for consideration. However, it makes no recommendations or decisions. It does not change the law or judicial practice in Australia, let alone New Zealand. It confirms, however, that in deciding Mr Jones’s application, I acted in accordance with the procedure that is applied in most common law jurisdictions.
[19] At the hearing of his applications, Mr Jones acknowledged that he had no issue with the way I conducted the hearing of his appeal. His allegations of bias and his application for recusal are based only on the substance of the decision he seeks to appeal. In that regard, Mr Jones’s allegations and application may raise questions as to whether Mr Jones is looking to create delay or engage in judge-shopping as discussed in the Background Paper. It is unnecessary, however, to make findings on those questions.
[20] Mr Jones’s overall submission that a fair-minded lay observer would conclude from the substance of my judgment that I would not bring an impartial mind to the resolution of his applications really goes to the question of whether Mr Jones has arguable grounds for seeking leave to appeal. I consider that submission, therefore, in the context of his application for leave to appeal.
7 Australian Law Commission <alrc.gov.au>.
Application for leave to appeal out of time
[21] Mr Jones filed his application for leave to appeal on 10 March 2022, nine days after the end of the 20 working day period for the filing of applications for leave to appeal provided for in r 20.3(1) of the High Court Rules 2016.
[22] In an affidavit filed with his application, Mr Jones explained that he had mistakenly sought to file his application for leave directly with the Court of Appeal, even though he had been aware of s 60 of the Senior Courts Act 2016. That section provides that an application for leave to appeal a decision of the High Court on appeal from the District Court must be made initially to the High Court.8
[23] Stace Hammond objects to any extension of time and says it would be prejudiced by any extension because the application for leave is meritless. However, Stace Hammond was aware of Mr Jones’s application for leave to appeal my decision refusing leave to adduce additional evidence, which was filed within time and which signalled Mr Jones’s intention to appeal my substantive decision.
[24] In these circumstances, I am satisfied that there is no real prejudice to Stace Hammond in Mr Jones filing his application for leave to appeal nine days late. Accordingly, I grant leave to Mr Jones to file his notice of appeal out of time.
Applications for leave to appeal and for leave to appeal decision declining leave to adduce additional evidence
[25] The grounds stated in Mr Jones’s applications for leave to appeal and for leave to appeal my decision declining leave to adduce additional evidence are largely the same. For that reason, I consider them together. Mr Jones’s submissions also addressed both applications together.
8 Senior Courts Act 2016, s 60(2).
Relevant considerations
[26] As Mr Jones accepts, in Greendrake v District Court of New Zealand, the Court of Appeal recognised the following considerations as relevant to an application for leave to appeal:9
(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.
The asserted arguable errors
[27] Mr Jones asserts that Stace Hammond knew there was a conspiracy against him and that Stace Hammond had a conflict of interest with regard to the Te Akau Stud and its principal, Mr Ellis. He says Stace Hammond was required to advise him of the conspiracy and to refuse to act for him. He says that the material exhibited to his additional affidavit that he sought to put in evidence shows he was subject to coordinated pressure that amounted to harassment and that, in the absence of contradictory evidence from Stace Hammond or anyone else, he was entitled to take the view that the evidence he adduced should be accepted.
[28]The arguable errors that Mr Jones identifies are:
(a)I failed to assess at all or adequately the evidence of Dr Bertin;
(b)I failed to accept an inference of intentional damage to Mr Jones’s interests resulting from the treatment of Mr Jones’s foal in New South
9 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
Wales and the actions of a veterinary clinic in New Zealand and Wentworth Grange in relation to another valuable horse;
(c)I failed to acknowledge “the existence and/or materiality of the facts” referred to in an exhibit to Mr Jones’s additional affidavit in the absence of contrary evidence;
(d)I reached conclusions as to Mr Jones’s competence and state of mind in reliance on a judgment of Venning J and in the absence of medical evidence and, in this respect, I breached the Guidelines for Judicial Conduct;
(e)I failed to understand the potential connection between the conspiracies to which Mr Jones refers and their impact on his relationship with Stace Hammond;
(f)I failed to place adequate emphasis on the fiduciary obligations of Stace Hammond; and
(g)I over-emphasised Mr Jones’s experience as a lawyer when he was clearly impacted by the litigation and its surrounding circumstances.
Analysis
[29] Mr Jones’s submission that, in the absence of contradictory evidence from Stace Hammond or anyone else, he was entitled to take the view that the evidence he adduced regarding the existence of a conspiracy and a conflict of interest on the part of Stace Hammond should be accepted, misses the essential point of my decision. The Court’s findings, not Mr Jones’s view, determine the outcome of his appeal against the District Court’s decision.
[30] As stated at [69] of my judgment of 29 January 2022, the Court of Appeal has held, in Krukziener v Hanover Finance Ltd, that a Court need not accept uncritically
evidence that is inherently lacking in credibility or is inherently improbable.10 I found that the evidence Mr Jones had advanced in support of the alleged conflict of interest was inherently lacking in credibility and was inherently improbable. Given that finding, I do not consider it reasonably arguable that I should have admitted and accepted the evidence that Mr Jones had sought to adduce in support of the alleged conspiracy and conflict of interest.
Dr Bertin’s evidence
[31] The first two arguable errors asserted by Mr Jones relate to my consideration of the affidavits of Dr Bertin that had been sworn in a proceeding brought against Mr Jones by the Scone Equine Hospital in New South Wales, Australia for non- payment of fees for treatment by that Hospital of a foal owned by Mr Jones and which Mr Jones wished to put in evidence in this proceeding.
[32] As a preliminary comment, I do not accept that I was disparaging towards Dr Bertin or that I failed to assess his evidence. At paragraph 1 of his affidavit sworn on 2 June 2020, Dr Bertin stated that he was “a senior lecturer in Equine Internal Medicine at The University of Queensland.” No-where in that affidavit or in his subsequent affidavit did Dr Bertin describe himself as an associate professor. I understand now that Dr Bertin is an Associate Professor but that was not apparent from the material then before me.
[33] In my decision, I did not consider it necessary or appropriate to go into the detail of Dr Bertin’s evidence. I considered it sufficient to record, at [50] of my judgment, that I did not accept that the report prepared by Dr Bertin amounted to evidence of intentional mistreatment by the equine hospital that had brought a claim against Mr Jones for unpaid fees. I stated:
Whatever the report stands for, there is nothing in it that would support allegations of deliberate mistreatment, fraud or conspiracy; nor is there anything in that report that bears on Mr Jones’s defences to Stace Hammond’s claim.
[34]I reached that conclusion for the following reasons.
10 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
[35] In his first affidavit, Dr Bertin recorded that he had been asked to review medical evidence in relation to a mare, Saltatio, and her foal which had been diagnosed with and treated by the Scone Equine Hospital for what was suspected to be neonatal isoerythrolysis (NI) after the foal’s birth.
[36]Dr Bertin stated in his first affidavit that:
10.On the evidence I have been given and in my professional opinion, I am minded to think that at the time the foal was born and shortly after, it was exhibiting clinical signs more akin to that of either acute haemorrhage and neonatal sepsis.
…
Conclusion
11.Given my review of the evidence considered, I do not believe that at the time of the foals birth that it was suffering from NI, and that this was certainly confirmed to be the case later when blood tests revealed no indications of NI.
12.To the extent that I am able to comment, a more robust approach at the time of the foals birth in handling its ill-health would have been to consider more likely diagnoses that are consistent with the clinical signs that the foal was experiencing.
[37] It is apparent that Dr Bertin considered there had been a misdiagnosis of the foal’s condition. He did not allege deliberate mistreatment of the foal.
[38] Dr Bertin’s second affidavit was made principally in response to a report prepared by Associate Professor Brett Tennent-Brown, an Associate Professor in Equine Internal Medicine at the University of Melbourne’s Faculty and of Veterinary and Medical Sciences.
[39] In his report, Associate Professor Tennant-Brown commented on Dr Bertin’s affidavit. He stated that Dr Bertin’s description and explanation of NI was largely accurate but contained some errors that suggested an incomplete understanding of the pathogenesis and clinical presentation of the condition. At the conclusion of his report, Associate Professor Tennant-Brown stated:
Based on the clinical notes, medication records and contemporaneous reports, clinicians attending the Saltatio ’18 foal were immediately aware of the severity of this foal’s condition. The treatments provided were life-saving and
entirely appropriate. The fact this foal survived is a testament to the promptness and effectiveness of the actions of the attending veterinarians and intensive monitoring and supportive care provided by nursing staff. In the information that was provided to me, I found no evidence of unnecessary or excessive treatments and in my opinion, the level of care exceeded that generally expected in the industry.
[40] In his second affidavit, Dr Bertin responded to Associate Professor Tennant- Brown’s report, particularly with regard to the existence of NI in the foal and the diagnosis of that condition. In a summary at paragraph 36 of the affidavit, Dr Bertin stated that he did not believe the filly (the foal) suffered from NI but believed she suffered from umbilical haemorrhage and that, given the information available, he did not believe it was reasonable to conclude the filly had been suffering from NI. Dr Bertin also stated his opinion that Associate Professor Tennant-Brown “struggles to support a finding of NI” and it appeared to Dr Bertin that Associate Professor Tennant-Brown’s conclusions were more that, in other respects, the foal had been adequately cared for, including the umbilical haemorrhage, so the incorrect NI diagnosis was of no moment.
[41] Again, in this summary, Dr Bertin makes no allegation of deliberate mistreatment of the foal.
[42] Mr Jones says I paid insufficient attention to one section of Dr Bertin’s second affidavit in which, at paragraphs 30 to 35, Dr Bertin recorded comment he had been asked to make on the birth of the foal and her treatment up until the time she arrived at the Scone Equine Hospital.
[43] Dr Bertin said that he understood that the foal’s birth had been difficult and had resulted in an umbilical haemorrhage and that, while attempts had been made to stop the bleeding, the umbilical cord had not been tied before the foal had been transported to the hospital with a towel applied to the foal’s belly.
[44] Mr Jones places particular emphasis on paragraph 35 of Dr Bertin’s second affidavit which stated:
35. I cannot imagine the circumstances in which it would not have been possible to ligate the umbilical cord in some way to stop the bleeding of the foal and the passage of up to 9 hours, that is, from 2.00 am to
when the foal apparently arrived at the clinic is inexplicable in terms of the emergency treatment that would have been necessary at the time of the birth. In my opinion the delayed ligation and resulting blood loss would have had a significant impact on the care of the foal as it would justify hospitalisation and could be considered as a pre- disposing factor for complications such as sepsis that occurred.
[45] Mr Jones says that Dr Bertin concludes, in the following paragraph of his affidavit, that the care of the foal when it arrived at Scone Equine Hospital was clearly far below the standard of care to be expected by a veterinarian. Mr Jones submits that “these matters” in conjunction with similar issues referred to in his affidavit of 18 April 2021, which he swore and filed in this proceeding, “… give rise to more than a tenable inference of foul play of which Mr Ellis was a significant part.”
[46] I do not agree. I do not accept that Dr Bertin’s evidence gives rise to a tenable inference of foul play in Australia, let alone foul play involving Wentworth Grange or Mr Ellis in New Zealand.
[47] First, in paragraph 36 of his second affidavit, Dr Bertin does not offer his opinion on the standard of care of the foal prior to her arrival at the Hospital. Paragraph 36 deals principally with whether the foal had been suffering from NI and whether the diagnosis of NI by the Scone Equine Hospital had been reasonable.
[48] Secondly, except for paragraphs 30 to 35 of Dr Bertin’s second affidavit, all of the medical evidence in the New South Wales proceeding that Mr Jones sought to put in evidence concerned the treatment of the foal after its arrival at the Scone Equine Hospital. That is to be expected because the Hospital was seeking payment for the care afforded the foal at the Hospital. The evidence was not focused on the treatment of the foal prior to its arrival at the Hospital.
[49] Thirdly, even in paragraph 35 of his second affidavit, Dr Bertin makes no allegation of foul play or deliberate mistreatment of the foal prior to its arrival at the Hospital. Dr Bertin was also careful to preface his comments on the foal’s condition on arrival at the Hospital by recording that his assessment could only be general because it was based on information supplied to him by Mr Jones.
[50] Finally, there is nothing in Dr Bertin’s affidavits that links whatever happened in Australia to the alleged mistreatment of Mr Jones’s horses by Wentworth Grange in New Zealand. Even less does that information provide a credible basis for linking what happened in Australia to Mr Jones’s failure to pay the fees he owes to Stace Hammond. At the hearing of the current applications, Mr Jones himself acknowledged that Stace Hammond had no knowledge of what had happened to his foal in Australia. That acknowledgment further underlines the fact that whatever happened in Australia can have no bearing on Stace Hammond’s obligations to Mr Jones or on Mr Jones’s obligations to pay Stace Hammond’s fees.
[51] For all these reasons, I do not accept that I made any error with regard to the assessment of Dr Bertin’s evidence or that a that a fair-minded lay observer would conclude that I was biased and did not bring an impartial mind to that assessment.
Mr Jones’s additional affidavit
[52] The third and fourth arguable errors asserted by Mr Jones relate to my consideration of extracts from an affidavit Mr Jones prepared for use in a separate proceeding which he subsequently commenced after the hearing of his appeal in this proceeding.
[53] That subsequent proceeding was against 16 named defendants and “unknown defendants” as the seventeenth defendant. As Venning J stated in a judgment dated 29 November 2021:11
[2] In the statement of claim Mr Jones alleges conspiracy against the first to ninth defendants and alleges harassment and breach of privacy against all defendants. In relation to two of the defendants, the Hon Justice Jagose and the Attorney-General, the pleadings also allege bad faith, and breach of the New Zealand Bill of Rights Act 1990 by the Judge during the course of a proceeding presided over by him.
[54] Venning J struck out the claims against Jagose J and the Attorney-General in the fifth and sixth causes of action as an abuse of process, struck out the claims against the tenth to seventeenth defendants in the first to fourth causes of action as an abuse
11 Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220.
of process and stayed the claims against the first to ninth defendants pending an amended pleading in proper form being filed against those defendants.12
[55] I agree that I did not accept the existence or materiality of the matters described in the exhibited extracts. After describing the nature of the material at [47] of my judgment, I stated at [48]:
… the material provides no credible support to the existence of the alleged conspiracy and nothing of any probative value to link the alleged conspiracy to Stace Hammond’s ability to act for Mr Jones in defending the Wentworth Grange claim.
[56] Nothing Mr Jones has put forward in his application for leave to appeal causes me to alter that conclusion. It is not enough for Mr Jones to allege conspiracy and then say his allegations should be accepted by the Court in the absence of evidence to the contrary. I refer again to the observation by the Court of Appeal in Krukziener v Hanover Finance Ltd, that a Court need not accept uncritically evidence that is inherently lacking in credibility or is inherently improbable. The material in the extract clearly falls into that category given its content as described at [47] of my judgment.
[57] I did not reach any conclusions regarding Mr Jones’s competence or state of mind. I repeated the observation that Venning J had made in his judgment that the material put forward by Mr Jones “raises issues as to Mr Jones’s competence and current state of mind.” That is an observation, not a conclusion. Nor was it a criticism of Mr Jones. It is for others to decide whether the observation amounts to a breach of the Guidelines for Judicial Conduct 2019.
[58] My findings and observations were based on the material Mr Jones sought to adduce as evidence. I found that that material was not credible. I do not accept that I made any error with regard to the assessment of that material or that a that a fair- minded lay observer would conclude that I was biased and did not bring an impartial mind to that assessment.
12 At [34] – [36]. The named defendants included Mr Ellis as fifth defendant but did not include the Te Akau Stud or Wentworth Grange.
The remaining arguable errors
[59] With regard to Mr Jones’s fifth asserted arguable error, the question is not whether I understood the potential connection between the conspiracies he referred to and their impact on his relationship with Stace Hammond. Rather, the question is whether Mr Jones had established a tenable basis for the existence of such conspiracies and their relevance to his non-payment of Stace Hammond’s fees. For the reasons given in my earlier judgment, I am satisfied that Mr Jones had not established such a tenable basis. Mr Jones’s submissions do not alter that conclusion.
[60] The same conclusion holds for the asserted error concerning the adequacy of the emphasis on the fiduciary obligations of Stace Hammond. The plain facts are:
(a)Stace Hammond raised the question of a possible conflict of interest early in the instruction and assured Mr Jones they did not consider there was any such conflict;
(b)Mr Jones did not challenge that advice;
(c)Mr Jones proceeded to engage with Stace Hammond and Mr Ring for the next four and a half months in preparing his defence to that proceeding;
(d)Stace Hammond and Mr Ring withdrew from the proceeding after Mr Jones made it clear he wanted to include in his pleadings material that Stace Hammond and Mr Ring considered would put them in breach of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008;
(e)Mr Jones did not object or raise any issue regarding the alleged conflict of interest then or in correspondence over the following five months concerning Mr Jones’s unpaid fees;
(f)It was only after Stace Hammond had brought the present proceeding that Mr Jones raised that issue.
[61] In these circumstances and in the absence of any tenable evidence to support Mr Jones’s allegations of one or more conspiracies, the weight to be given to Stace Hammond’s acknowledged fiduciary obligations is of little moment. Those obligations do not provide Mr Jones a tenable basis for avoiding paying fees properly incurred on his instructions. That Mr Jones has not accepted Stace Hammond’s offer to abandon its claim for fees does not make Mr Jones’s position any more tenable.
[62] As to the last of the asserted arguable errors, I do not accept that I over- emphasised Mr Jones’s experience as a lawyer. At [68] of my judgment, I observed that the person with the greatest knowledge of any potential conflict of interest arising from Mr Jones’s dealings with Te Akau Stud and Mr Ellis was Mr Jones himself. That is so, regardless of whether or not Mr Jones is a lawyer. I then observed that Mr Jones was an experienced litigator and understood the situation concerning conflicts – as he had said himself in an email to a partner at Stace Hammond. I also observed that, if there really was a real possibility of a conflict of interest, Mr Jones was well placed to provide evidence of that conflict. I found that Mr Jones had not provided any evidence of that alleged conflict when he first raised the issue it or subsequently. That is a fact, regardless of whether Mr Jones is a lawyer.
[63] Nor do I accept Mr Jones’s assertion that he was not provided with courageous well-reasoned and independent advice. The record shows that experienced lawyers, who had worked closely with Mr Jones over many years, courageously refused to follow Mr Jones’s instructions to include in his pleadings material they considered would put them in breach of their professional obligations. Their reward was Mr Jones’s refusal to pay their fees and their being subjected to unsubstantiated allegations of being complicit in a conspiracy against Mr Jones.
[64] For all these reasons, I do not consider that any of the asserted errors raises questions of law or fact capable of bona fide and serious argument. They are all contingent on acceptance of the existence of a conspiracy or conflict of interest of which Mr Jones has provided no cogent or credible evidence.
Are the asserted arguable errors of general or public importance? Are the errors of sufficient importance to Mr Jones to outweigh the lack of general or precedential value? Do the circumstances warrant incurring further delay?
[65] Even if I considered that the asserted errors were arguable, it is patent that they are not of general or public importance. Nor are they of sufficient importance to Mr Jones to outweigh the lack of general or precedential value. Nor do they warrant incurring further delay.
[66] The asserted errors relate to a judgment dismissing Mr Jones’s appeal against summary judgment entered by the District Court for the non-payment of fees of just under $15,000 (excluding interest and costs) for legal advice provided over two years ago. Despite the importance that Mr Jones ascribes to the issues that he says justify his refusal to pay those fees, Mr Jones has adduced no credible or cogent evidence of the conspiracies he alleges in support of his refusal to pay a relatively small amount for fees incurred on his instructions.
[67] In these circumstances, I am satisfied that the proceeding does not warrant a further hearing before the Court of Appeal.
Are the interests of justice served by granting leave?
[68] For all of the above reasons, I am satisfied that the overall interests of justice would not be served by granting Mr Jones leave to appeal or by granting leave to appeal my decision dismissing Mr Jones’s application to adduce further evidence.
[69] For whatever reason, Mr Jones is engaged in a misguided endeavour to avoid paying fees incurred on his instructions by alleging the existence of a conspiracy or conspiracies of which he has provided no credible or cogent evidence.
Result
[70] I dismiss Mr Jones’s application for leave to appeal and his application for leave to appeal my decision dismissing his application to adduce further evidence on appeal.
Costs
[71] Stace Hammond is entitled to costs on a 2B basis. I reserve leave to apply for an increase over scale costs.
G J van Bohemen J
Appendix: Recusal guidelines for High Court judges
Introduction
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. These recusal guidelines are issued after consultation with the Chief Justice.
1.General principles
1.1A judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist.
1.2A 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.
1.3The standard for recusal is one of “real and not remote possibility”, rather than probability.
1.4The test is a two-stage one. The judge must consider
1.4.1First, what it is that might possibly lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and
1.4.2Second, whether there is a “logical and sufficient connection” between those circumstances and that apprehension.
1.5The question of recusal is for the judge hearing the case. Some of the matters the judge should consider are:
1.5.1A judge should apply the above principles firmly and fairly and not accede too readily to suggestions of bias.
1.5.2A judge should be mindful of the burden that passes to other judges if the judge recuses him or herself unnecessarily.
1.5.3. A judge is not required to recuse him or herself merely because the issues involved in a case are in some indirect way related to the judge’s personal experience or that the judge has previously dealt with the case.
1.5.4The making of a complaint to the Judicial Conduct Commissioner against a judge does not of itself serve to disqualify the judge from hearing cases involving the complainant.
1.5.5If, after considering all relevant circumstances, there is doubt about whether there may properly be an appearance of bias, it may be prudent for the judge to decline to sit in that case.
1.6Conflicts of interest can arise in a number of different situations. A judge should be alert to any appearance of bias arising out of connections with litigants, their legal advisors or witnesses.
1.7The apprehension of bias is case dependent. The fact that a particular relationship falls outside the examples in these guidelines does not automatically mean that there cannot be a reasonable apprehension of bias in the particular circumstances of the case at hand.
2.Recusal where relationship exists
2.1The existence of a relationship with a party, lawyer or witness will not in itself create a reasonable apprehension of bias. There must be some logical connection between the relationship and its capacity to influence the judge to deviate from the course of deciding a case on its merits alone.
2.2A judge should recuse himself or herself where a party, lawyer or witness of disputed facts is a close relative or domestic partner of the judge.
2.3Other situations are not so clear cut. Some examples of common relationships that a judge should consider as they may give rise to the apprehension of bias are:
2.3.1A party or witness of disputed facts is a close friend of the judge;
2.3.2A witness of disputed facts is someone known to the judge or someone about whom he or she has formed a view, such as a former client; or
2.3.3. A party, lawyer or witness of disputed facts is a business associate of the judge. Much will depend on the nature and extent of the association. For example, if the judge is directly or indirectly financially dependent on or indebted or otherwise beholden to a party, lawyer, or witness, the judge should recuse himself or herself unless that dependence or indebtedness is so minimal as to be immaterial.
2.4The fact a judge has a friendship or past professional association with lawyers engaged in the case, will not generally be sufficient to require recusal. The test as always is whether a fair minded fully informed observer would reasonably apprehend the judge might not be impartial in the circumstances of the case.
3.Recusal arising from legal practice
3.1A judge should recuse himself or herself if he or she served as a legal advisor in respect of the matter in issue when in practice.
3.2If the matter in issue was dealt with by the firm at a time when the judge was a member of the firm, the judge may need to consider recusal even if the judge had no personal involvement in providing
advice about it if the Judge obtained relevant knowledge about the matter in issue or had formed a view of the parties.
4.Recusal where economic interest
4.1A judge should recuse him or herself if he or she, or a close relative or member of the judge’s household, directly or indirectly has an economic interest in the outcome of the proceedings. Such conflicts may arise out of current commercial or business activities, financial investments (including shareholding in public or private companies) or membership or involvement with educational, charitable or other community organisations which may be interested in the litigation.
4.2An economic interest may also arise in another situation. That is where the case is to decide a point of law which may affect a judge in his or her personal capacity beyond that of the public generally. In deciding whether to recuse him or herself, a judge should have regard to the point of law, to the nature and extent of his or her interest, and the effect of the decision on others with whom the judge has a relationship, actual or foreseeable.
4.3Shareholdings in litigant companies or companies associated with litigants should be disclosed even where the shareholding is small. They should lead to recusal if the value of the shareholding would be affected by the outcome of the litigation.
5.Recusal where opinions earlier expressed
5.1A judge should consider recusing him or herself if the case concerns a matter upon which the judge has made public statements of firm opinion on the issue before the court.
5.2An expression of opinion in an earlier case or in an earlier stage of a proceeding is not of itself a ground for recusal.
6.Disclosure of conflict of interest: principles
6.1Adequate disclosure protects the integrity of the judicial process and is also a defence against later challenges to the decision.
6.2Disclosure does not constitute an acknowledgement that the circumstances give rise to a reasonable apprehension of bias.
6.3Disclosure of any matter which might give rise to objection should be undertaken even if the judge has formed the view that there is no basis for recusal. There may be circumstances not known to the judge which may be raised by the parties consequentially upon such disclosure.
7.Disclosure of conflict of interest: practice
7.1Disclosure should be made as early as possible before the hearing.
7.2When making disclosure, the judge should issue a minute through the Registrar to counsel for all parties.
7.3The judge should ensure that the minute contains sufficient information, without unnecessary detail, to enable the parties to decide whether to make a recusal application. It is undesirable for parties to be placed in the position of having to seek further information from the judge.
7.4On occasion advance disclosure often may not be possible in light of listing arrangements. In this situation, disclosure on the day of the hearing may be unavoidable. If this occurs:
7.4.1.Discussion between the judge and the parties about whether to proceed should normally be in open court, unless the case itself is to be heard in chambers.
7.4.2The parties should be given an opportunity to make submissions on recusal after full disclosure of the circumstances giving rise to the question of recusal.
7.4.3The judge should be particularly mindful of the difficult position that the parties and their advisors are placed in by disclosure on the day of the hearing. Late disclosure puts the parties in a situation where it might appear to them that consent is sought even although a ground of recusal actually exists.
7.5The consent of the parties to a judge sitting is important but not determinative, as the subjective perceptions of the parties are not relevant to whether there is a reasonable apprehension of bias.
7.5.1Even where parties consent, the judge should nonetheless recuse himself or herself where he or she is satisfied recusal is required.
7.5.2In other cases, where the judge has disclosed a matter which might give rise to objection and has heard and considered submissions, he or she may form the view that the hearing may proceed notwithstanding the lack of consent.
7.6In circumstances of urgency, where the judge cannot be replaced for practical reasons, he or she may need to hear the case, notwithstanding that there may exist arguable grounds in favour of recusal. Consent will be a particularly relevant consideration in this situation.
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