Lagolago v Wellington Standards Committee 2
[2018] NZHC 1090
•18 May 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2015-485-635
[2018] NZHC 1090
IN THE MATTER of an appeal under s 253 of the Lawyers and Conveyancers Act 2006 BETWEEN
PAPALI’I TOTI LAGOLAGO
Appellant
AND
WELLINGTON STANDARDS COMMITTEE 2
Respondent
On the papers: Counsel:
A C Beck for Appellant
D R La Hood for Respondent
Judgment:
18 May 2018
JUDGMENT OF CHURCHMAN J
Background
[1] On 2 May 2018, I heard an application by the appellant for leave to appeal to the Court of Appeal in relation to a costs decision given by Clifford J on 8 December 2017.
[2] The costs decision was the sequel to a judgment by Clifford J on the substantive appeal which had been delivered on 30 November 2016.
[3] The reason that the application for leave to appeal to the Court of Appeal in respect of the costs decision came before me was because Clifford J is now sitting in the Court of Appeal.
LAGOLAGO v WELLINGTON STANDARDS COMMITTEE 2 [2018] NZHC 1090 [18 May 2018]
The present application
[4]On 2 May 2018, I heard the application for leave to appeal.
[5] By memorandum dated 4 May 2018, Mr Beck, counsel for Ms Lagolago, requested that I give consideration as to whether this was a case I could properly decide.
[6] By this stage I had already heard the case and had commenced preparing a decision.
[7] By minute of 7 May 2018, I directed that if the applicant wished to formally pursue a recusal application she was required to file and serve such an application along with any supporting affidavit.
[8] On 14 May 2018, a recusal application together with an affidavit by Ms Lagolago was received by the Court.
Grounds of application
[9] The principal grounds for the application were that in 2012, some six years ago, I had been a member of a panel which had processed applications by lawyers for appointment as legal services providers. It was alleged that during the course of discussions with other panel members I had “expressed firm views regarding the appellant’s professional conduct”.
[10] It was claimed that the appellant’s professional conduct is directly relevant to the current application and it was said to be “one of the factors considered by Clifford J to be relevant to his costs decision.”
[11] It was claimed that a fair-minded, fully informed observer would have a reasonable apprehension that I might not bring an impartial mind to the determination of the application for leave to appeal the costs decision.
[12] Counsel for the respondent has filed a memorandum on 16 May 2018 abiding the decision of the Court.
The relevant principles
[13] As required by s 171 of the Senior Courts Act 2016, the Chief High Court Judge, in consultation with the Chief Justice, has developed and published a recusal guidelines. The general principles in those guidelines are:
(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; and
(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 observer that the Judge might decide the case other than on its merit; and
(ii)second, whether there is a logical and sufficient connection between those circumstances and that apprehension.
[14] The matters that a Judge is required to consider on a recusal application include:
(a)a Judge should apply the above principles firmly and fairly and not accede too readily to suggestions of bias;
(b)a Judge should be mindful of the burden that passes to other Judges if a Judge recuses himself or herself unnecessarily;
(c)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;
(d)the making of a complaint to the Judicial Conduct Commissioner against the Judge does not of itself serve to disqualify the Judge from hearing cases involving the complainant;
(e)if 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.
[15] The guidelines contemplate that a recusal application will occur prior to a Judge hearing a matter. They do not expressly address the situation of a party applying for a recusal once the hearing has finished.
[16] The Judge is also required to be alert to any appearance of bias arising out of connections with litigants, their legal advisors or witnesses.
[17] The guidelines emphasise that there must be some logical connection between the relationship and its capacity to influence the Judge to deviate from the course in deciding the case on its merits alone.
Analysis
[18] The starting point is to see what connection, if any, there was between my involvement with Ms Lagolago in 2012, and the application for leave to appeal the costs decision on 2 May 2018.
[19] As a result of the implementation of the Legal Services Act 2011, all legal aid lawyers needed to reapply to be legal aid providers. The task of assessing the applications and working out what categories the applicants fell within was a huge task which involved processing hundreds of applications.
[20] I was asked by the New Zealand Law Society if I would represent the Society as one of its nominees on the committee that processed the applications for the Wellington region. The role was a voluntary one which I undertook as an aspect to service to the profession.
[21] Because of the large number of applications that were required to be considered and the time that has passed, I have little independent memory of Ms Lagolago’s application. I do recall that there were some problems with it and that there was specific discussion by the committee about her case. This distinguished the case from many other applications where, having read the paper work submitted in support of the application, it was clear that the applicant was appropriately qualified and there was accordingly little, or at times no, comment or discussion at the formal committee meeting.
[22] Reviewing the material filed with the affidavit of Ms Lagolago has jogged my memory as to the nature of the concern. Ms Lagolago has been involved as counsel in some judicial review proceedings. Unusually, those proceedings had been the subject of adverse comment from two High Court Judges.
[23] Ms Lagolago had referred to this judicial review case in her application. The Registrar of the committee had provided copies of the decisions of the Judges containing the comments for consideration prior to the committee meeting.
[24] The material indicated that Ronald Young J had warned Ms Lagolago about the consequences of proceeding with the judicial review application but she had ignored his warning. The proceedings were ultimately struck-out by Gendall J. My memorandum to the other committee members set out the language that Gendall J had used in his decision on the strike-out application. He had used words like “hopeless, futile, wasteful (of resources), misconceived, misguided, untenable and an abuse of process” to describe the claim. The extent of my contribution was to note that Gendall J was not a Judge prone to exaggeration and that on reading the decision, his comments appeared to have been well justified.
[25] The issue before the committee was not Ms Lagolago’s competence as a lawyer per se, it was whether or not she was appropriately skilled and experienced to be appointed as a legal services provider.
[26] In the affidavit Ms Lagolago has filed in support of these proceedings, she says that I expressed the view that it would take something extraordinary for me to change my views about her professional ability.
[27] The views that she is referring to were what I specifically described as a “preliminary” view, that I provided ahead of the meeting at which the full committee would discuss Ms Lagolago’s case. The actual sentence in context was:
Without wanting to prejudge the matter, it would take something extraordinary to convince me that my preliminary view needed changing.
[28] That view was in connection with the application then in hand, and based on the comments that two Judges had made about her conduct of a judicial review case.
[29]In her affidavit in support of the present application, Ms Lagolago says:
There is no indication that he subsequently changed his views, and I believe they were instrumental in my application being declined.
[30] All of the members of the committee had grave reservations about Ms Lagolago’s application and, my recollection is that the decision to decline it was unanimous.
[31] The 2012 application was the first time I ever had anything to do with Ms Lagolago. I never, in fact, met her in person and my knowledge of her was confined to a consideration of the material that she had supplied in support of her then application. Up until the application for leave to appeal the costs decision was heard on 2 May 2018, I had not heard her name mentioned since 2012.
[32] In terms of assessing whether there is a “logical and significant connection between the committee I sat on in 2012 and the application for leave to appeal the
costs decision”,1 I note that the subject matter was completely different and that the costs decision in respect of which leave was sought, had no connection whatsoever with the matters that the committee I had been a member of had considered some six years previously.
[33] The application asserts that Ms Lagolago’s “… professional conduct is directly relevant to the current application, and is one of the factors considered by Clifford J to be relevant to his costs decision.”
[34] That significantly overstates the actual situation. The test for the leave application is whether or not an issue of general or public importance exists so as to justify granting leave to appeal. That is not a question which involves forming an opinion on Ms Lagolago’s professional conduct. It was no part of the leave application for me to form a view on the merits of the substantive proceedings which had long since been disposed of by Clifford J. I was not in any way sitting in judgment on the substantive decision of Clifford J. The leave application purely related to the costs decision.
[35] In assessing whether a fully informed observer might have a reasonable apprehension that I might decide the case other than on its merits, any such observer is likely to note the relatively focused nature of an application for leave to appeal to the Court of Appeal and that the application related solely to a costs decision rather than the substantive decision. Such an observer is also likely to note that the issues of whether or not the leave application disclosed a question of general or public importance is not dependent on any finding as to Ms Lagolago’s competence.
[36] A fully informed observer is also likely to note the complete absence of any connection between subject matter of the costs decision and the application made in 2006 by Ms Lagolago therefore distinguishing this case from the decision relied upon by the applicant in Erris Promotions Limited v Commissioner of Inland Revenue.2
[37]Guideline 1.5.3 of the Recusal Guidelines makes it clear that:
1 See Saxmere Company Limited v Wool Board Disestablishment Company Limited [2009] NZSC 72, [2010] 1 NZLR 35.
2 Erris Promotions Limited v Commissioner of Inland Revenue 16 PRNZ 1014.
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.
[38] If having previously dealt with the same case does not of itself justify recusal, having in a different context many years previously, come across Ms Lagolago is even less of a basis to justify recusal.
[39] I am also required to consider the burden that passes to other Judges should I recuse myself unnecessarily. A most unusual feature of the present case is that the recusal application was not made prior to the hearing or even at the time of the hearing, but after the hearing had been concluded. If I were to recuse myself, not only would another Judge have to hear the matter, but the entire case would have to be reheard with the inconvenience that would entail.
[40] The opinion that I expressed in relation to Ms Lagolago’s 2012 application related specifically to that application and was in large part a summary of (including a verbatim repetition) of conclusions reached by two High Court Judges in respect of a case that had come before them. It was appropriate in that context. It was a firm opinion but one which was shared by other informed observers.
[41] Even when a Judge has expressed a firm opinion on an issue that is relevant to subsequent proceedings before the Judge, that does not, of itself, disqualify the Judge. The Supreme Court in A (SC 106/2015) v R said:3
The New Zealand guidelines for Judicial Conduct recognise that there may be cases where a Judge should disqualify him or herself from hearing a case if it concerns a matter upon which the Judge has made public statements of firm opinion. This can include expressions of opinion in an earlier case or in an earlier stage of proceeding. However, the “expression of opinion” would have had to have been extreme and unbalanced before a reasonable observer would think the Judge is not able to have an open mind.
[42] In the circumstances, it is difficult to see how an informed observer might regard the paraphrasing of the opinions of two High Court Judges as being “extreme and unbalanced”.
3 A (SC 106/2015) v R [2006] NZSC 31 at [25].
[43]For these reasons, I dismiss the application for recusal.
Churchman J
Solicitors:
Luke Cunningham Clere, Wellington for Respondent
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