McConnor v Auckland Transport

[2025] NZHC 2819

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1824

[2025] NZHC 2819

UNDER

the Judicial Review Procedure Act 2016, the Social Security Act 2018, and s 27 of the New Zealand Bill of Rights Act 1990

IN THE MATTER

of an application for judicial review

BETWEEN

JAMES JOHN MCCONNOR

Applicant

AND

AUCKLAND TRANSPORT

First respondent

THE REGISTRAR OF THE DISTRICT COURT, AUCKLAND

(FINES COLLECTION UNIT)

Second respondent

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Third respondent

Judicial review list:

24 September 2025

Appearances:

Applicant in person

PMS McNamara for first respondent

J K Williams and L E Sinclair for second respondent R L Grierson and ENC Lay for third respondent

Date of judgment:

26 September 2025

REASONS FOR JUDGMENT OF JAGOSE J

[Recusal]

This reasons for judgment was delivered by me on 26 September 2025 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

MCCONNOR v AUCKLAND TRANSPORT [2025] NZHC 2819 [26 September 2025]

[1]    For this proceeding’s intended first call in the judicial review list before another Judge,1 Mr McConnor sought my recusal. That application was referred to me. In the abstract, the application was meaningless, as nothing in this proceeding then was allocated for my decision.2

[2]    At the outset of the proceeding’s call before me in the judicial review list on 24 September 2025, I asked Mr McConnor if he maintained his application for my recusal. He said he did. I asked if he wished to add anything in support of his application. He said he did not. I then declined to recuse myself, with reasons to follow. These are those.

[3]Mr McConnor says he:

… holds a genuine and reasonable apprehension that he would not receive a fair hearing should Justice Jagose be involved in this matter. This apprehension is based on a consistent pattern of judicial conduct and judicial pronouncements made by His Honour in two previous and separate judicial review proceedings, the consequences of the second of which directly led to the harm giving rise to the current proceeding.

He says I there “expressed a strong, unprompted, and preliminary view that [his] proceedings constitute an abuse of process”, such as “raises a reasonable apprehension that [I have] formed a settled negative view of [his] public law claims”. He contends I am so “[un]familiar with public law jurisprudence [I] could not preside fairly over a public law matter”. He says my latter decision,3 which he has sought to appeal,4 has caused him “tangible injury”, “reinforc[ing] the apprehension [my] initial order was not impartial”. He claims I verbally threatened him at its 17 July 2024 hearing, intimidating him into silence, demonstrating my “lack of impartiality or a pre-disposition against [his] case”. Cumulatively, he argues, these “[i]ndividually …

1      McConnor v Auckland Transport HC Auckland CIV-2025-404-1824, 26 August 2025 (Minute of Peters J).

2      D v N [2023] NZSC 99 at [3], reciting the President of the Court of Appeal’s admonition:

[A]  recusal application should only be made in the context of a specific application or appeal to which a judge has been assigned, in circumstances where there is a factual foundation for suggesting there is a real possibility that in the eyes of a fair-minded and fully informed observer that judge may not be impartial in reaching a decision. A view that previous decisions involving that judge were unfair, however firmly held, is not a proper foundation for such an application.

3      McConnor v Auckland Transport [2024] NZHC 2290.

4      McConnor v Auckland Transport [2025] NZHC 1035.

concerning” instances lead to a reasonable apprehension he “will not receive [an] impartial hearing” in the present proceeding.

[4]    Resolution of legal disputes by impartial and independent judges is “an essential underpinning” of democratic society.5 Those charged with criminal offences have “the right to a fair and public hearing by an independent and impartial court”;6 the right to apply for judicial review engages no lesser consideration.7 Not only must the Court actually be impartial and independent; it also must appear to be so.8 Nonetheless, the Supreme Court has stipulated “[j]udges should not recuse themselves without sufficient cause”.9 Apparent bias is to be assessed on a case-by-case basis.10

[5]    Section 171 of the Senior Courts Act 2016 required development and publication of recusal guidelines for the High Court. The resultant guidelines include:11

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.

This gives rise to a two-stage test,12 to identify first the relevant circumstances and then any “logical and sufficient connection” to such apprehension.

5      Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [32], endorsed by Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].

6      New Zealand Bill of Rights Act 1990, s 25(a).

7      Section 27(2), and see Muir v Commissioner of Inland Revenue, above n 5, at [32].

8      R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259.

9      A (SC 106/2015) v R [2016] NZSC 31 at [16], citing Stephen Sedley “When should a judge not be a judge?” [2011] 33 LRB 1 at 9 (republished in Stephen Sedley Law and the whirligig of time (Hart Publishing, Oxford, 2018) as “Recusal: when should a judge not be a judge?” at 116). See also Shimon Shetreet and Sophie Turenne Judges on Trial: The Independence and Accountability of the English Judiciary (2nd ed, Cambridge University Press, Cambridge, 2013) at 214; and Chamika Gajanayaka “Judicial recusal in New Zealand: looking to procedure as the principled way forward” (2015) 46 VUWLR 415 at 422. And see also Lyttleton v R [2018] NZCA 243 at [5]; and Stokes v Insight Legal Trustee Company Ltd [2015] NZCA 519 at [27].

10 KI Commercial Ltd v Christchurch City Council [2019] NZCA 645 at [10], citing Russell v Taxation Review Authority [2011] NZCA 158, [2011] NZAR 310 at [23] (citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA)).

11 Courts of New Zealand, “High Court recusal guidelines” (12 June 2017)

< at 1.2.

12 At 1.4; see also Sisson v Canterbury District Law Society [2011] NZCA 55, [2011] NZAR 340 at [20]–[22].

[6]    To paraphrase that test for application here, the issue is if my impugned involvement in the case makes it a real possibility a fair-minded, fully informed intelligent lay observer reasonably would apprehend I might not impartially decide the issue before me on its merits, notwithstanding my oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.13

[7]    In considering Mr McConnor’s application, I applied those guidelines, including the standard of “real and not remote possibility”, rather than probability, of partiality;14 to be determined by the two-stage test;15 in the application of which I am to apply the relevant principles “firmly and fairly and not accede too readily to suggestions of bias”.16

[8]In my assessment, a fair-minded, fully informed observer would understand:

(a)judicial review is the exercise of this Court’s supervisory jurisdiction over susceptible decision-makers “to ensure that public powers are exercised lawfully”;17

(b)as judicial review list judge, I have responsibility for ensuring judicial review proceedings are determined “in a convenient and expeditious manner”, “effectively and completely”, including by directing at my own initiative parties’ attendance at case management conferences and any consequential directions I consider necessary;18

(c)“[s]ome predisposition or inclination toward an argument or conclusion is tolerable. A preliminary view would need to be expressed in an extreme and unbalanced way to disqualify a judge”;19 and

13     Oaths and Declarations Act 1957, s 18.

14     High Court recusal guidelines, above n 11, at 1.3.

15     At 1.4.

16     At 1.5.1.

17     Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].

18     Judicial Review Procedure Act 2016, ss 13–14.

19     Stockman v New Zealand Association of Counsellors Inc [2018] NZCA 532 at [5], referring to

A (SC 106/2015) v R, above n 9, at [22] and [25].

(d)the predominant question for my decision was the content of directions leading to the proceeding’s determination, initially to address interlocutory application(s) (as I did).20

[9]    Nothing in that possibly could lead to an apprehension my directions would be made other than on the merits leading to such determination. Even if my directions were founded on my view of my earlier decision,21 that “is not disqualifying in itself”.22 A fair-minded, fully informed observer would comprehend I am expected— as judicial review list judge—actively to manage judicial review proceedings, and early identification of interlocutory applications for determination is desirable. There is no logical or sufficient connection between my role in these proceedings as judicial review list judge and any apprehension I might make directions other than on their merits.

[10]Mr McConnor’s application for my recusal was declined.

—Jagose J

Solicitors:

Simpson Grierson, Auckland Crown Law, Wellington

Copy to:

Applicant

20     McConnor v Auckland Transport HC Auckland CIV-2025-404-1824, 25 September 2025 (Minute of Jagose J).

21 At [5].

22     Bowen v National Australia Bank Ltd [2025] NZCA 282 at [16], n 14.