McDonald v New Zealand Law Society

[2007] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND

CA124/06 [2007] NZCA 171

BETWEEN  ROBERT MCDONALD Applicant

ANDNEW ZEALAND LAW SOCIETY Respondent

Court:  Glazebrook, Chambers and Ellen France J JJ Counsel:           P D McKenzie QC for Applicant

P N Collins for Respondent

Judgment (On the papers):     3 May 2007         at 11am

JUDGMENT OF THE COURT

A        The application to recall the judgment of this Court in McDonald v New

Zealand Law Society CA124/06 1 November 2006 is granted.

BWe recall that judgment and reissue it with order B of that judgment deleted and replaced by “There is no award of costs”.

C        The judgment is otherwise confirmed.

D        There is no award of costs on this recall application.

REASONS OF THE COURT

(Given by Glazebrook J)

MCDONALD V NEW ZEALAND LAW SOCIETY CA CA124/06  3 May 2007

Table of Contents

Para No

An application for recall  [1] Some procedural matters  [6] The allegations relating to Chambers J  [9] The allegations relating to Ellen France J  [24] Mr McKenzie QC’s instructions  [27] Should we recall the judgment?  [28] Result  [36]

An application for recall

[1]      On 1 November 2006, this Court declined the applicant’s (currently known as Mr Erwood) application for special leave to appeal out of time from a decision delivered in the High Court on 31 May 2002 (now reported as McDonald v FAI (NZ) General Insurance Co Limited (2002) 16 PRNZ 298).   In that decision Rodney Hansen J ordered the New Zealand Law Society (NZLS), one of the defendants to Mr Erwood’s proceeding, to pay costs to Mr Erwood.  Mr Erwood wished to appeal against that decision on the basis that the costs award should have been higher.

[2]      On 15 November 2006 Mr Erwood, through his counsel, Mr McKenzie QC, sought a recall of our judgment in order to withdraw the order for costs.  This was on the basis that Mr Erwood was legally-aided.   The NZLS consents to the judgment being recalled on the matter of costs.  It does not ask the Court to make any orders under s 40 of the Legal Services Act 2000.

[3]      Mr Erwood has also written to the Court, by letters dated 27 October 2006 and 30 October 2006 (but both received by the Court on 7 November 2006), stating that Chambers and Ellen France JJ should not have sat on the application due to their prior involvement in the proceedings.  The NZLS opposes a recall of the judgment on this ground.

[4]      The  specific  matters  alleged  by  Mr  Erwood  in  his  letters  were  that Chambers J  had,  while  in  the  High  Court,  dealt  with  an  application  made  by Mr Warwick  Smith,  then  acting  as  court  appointed  counsel  for  Mr Erwood,  in

relation to security for costs; that Chambers J, through his involvement with the NZLS, had dealt with Mr Erwood’s case prior to his appointment to the judiciary; and  that  Ellen  France J  had  been  involved  in  instructing  Mr McCoy  to  act  for Mr Erwood in related proceedings.

[5]      Given that Mr Erwood was legally aided, the award of costs was clearly inappropriate.  The judgment should be recalled therefore on the question of costs. The question is whether the other grounds for recall are made out.

Some procedural matters

[6]      The Court registry staff have issued under seal a notice of the outcome of the judgment under r 50 of the Court of Appeal (Civil) Rules 2005.  The judgment has not been sealed as contemplated by r 51 of those rules.   We have considered the application for recall on the basis that the judgment has not been perfected.   The principles governing recall of an unperfected judgment are set out in Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (HC).

[7]      We have dealt with this application on the papers in accordance with r 51(6) of the Court of Appeal (Civil) Rules 2005.   We have had no request for an oral hearing.  Full written submissions have been received from the parties, however, and we do not consider that oral submissions would have been of any further assistance to us.  We note also that, by minute of 21 March 2007, the parties were given an opportunity to comment on an earlier version of [11] – [26].   The current version takes account of Mr Erwood’s submissions filed on 20 and 23 April 2007.

[8]      We received no  request for this recall application to be dealt  with  by a different panel.   This is not surprising.   Recusal decisions are for the individual judge - see Erris Promotions Ltd v The Commissioner of Inland Revenue (2003)

16 PRNZ 1014 at [22] (CA).  There is thus no reason why a panel hearing a recall application,  which  is  based  on  allegations  that  judges  should  have  recused themselves, should not include those judges.  Indeed, it would usually be appropriate for those judges to be included in any panel.  It is they who will have knowledge of

the extent of their earlier involvement in the matters said to compromise them as well as knowledge of the matter where the recall is sought.

The allegations relating to Chambers J

[9]      On 21 November 2006 a minute was sent to the parties asking for further submissions to be filed on the allegations against Chambers and Ellen France JJ.  In that minute, it was said that Chambers J had not been able to find in his records and could not recollect having involvement with any judgment relating to security and Mr Warwick Smith.  Neither had he been able to find any record of and could not recollect being involved as a Judge in any matter relating to Mr Erwood, apart from Erwood v District Court HC AK M 1855/SW00 14 November 2000.   This did not involve an appearance.   It was also stated that Chambers J had no recollection of having any specific involvement relating to Mr Erwood on NZLS matters.

[10]     Further information has since been provided by the parties as to the matter involving Mr Smith.  Chambers J now recollects dealing with the matter.  It involved a request from Mr Erwood’s then court appointed counsel, Mr Smith, for the $3,000 security for costs Harrison J had fixed as payable by Mr Erwood (in judgments of

12 February and 27 February 2003) to be treated as a disbursement in the fees account  to  be  rendered  by  Mr  Smith  to  the  Crown.    Chambers J  declined  the application after a telephone hearing, noting on the file:

Request declined on the basis that there is no jurisdiction to sanction the State’s paying a litigant’s security for costs.  In addition, and in any event, the effect of the State paying the security Harrison J ordered the appellant to pay would be to undermine Harrison J’s decision.

[11]     On 2 February 2007, Mr Erwood filed an affidavit containing further material and providing more detail of his complaints.  He asserts in that affidavit that he first had contact with Chambers J before he was appointed a Queen’s Counsel regarding matters Mr Erwood was involved in at that time.   Chambers J took silk in 1992. Chambers J cannot recall any dealings he had with Mr Erwood before then.  Indeed, Chambers J has no recollection of ever being approached to act for Mr Erwood.

[12]     Mr  Erwood  asserts  that  he  next  had  contact  with  Chambers J  after  he telephoned the Auckland District Law Society (ADLS) about concerns he had about delays on the part of the NZLS in dealing with his claim against it.   Mr Erwood asserts that the secretariat referred him to Chambers J  “as  a New  Zealand  Law Society Officer in Auckland”.  According to the affidavit of 29 November 2006 of Mr Alan Ritchie, the Executive Director of NZLS, Chambers J was a Vice President of the NZLS between 27 March 1998 and 6 April 1999.

[13]     Chambers J has no recollection of any contact with Mr Erwood over his claim against the NZLS.  Chambers J can think of no other occasion when those who had complained to the ADLS were told to ring him.   His recollection is that the secretariat was always very reticent about giving Council members’ contact details to complainants.  This is understandable because there would be a risk that Council members, who were all unpaid, would be plagued by persistent complainants.  The ADLS secretariat would also have known that the NZLS had instructed counsel in respect of the matter.  In these circumstances, it would not have been proper to have involved Chambers J with Mr Erwood’s claim against the NZLS.

[14]     Further, the nature of Mr Erwood’s concern, namely his claim against the NZLS and the Fidelity Fund, was not something Chambers J had anything to do with and the ADLS secretariat would have known this.   We note that in his affidavit, Mr Ritchie deposes that there is no reference to Mr Erwood in the Minutes of the Board or the Council of the NZLS during Chambers J’s tenures of office.  He also deposes that Chambers J was not a member of the Management Committee of the Solicitors Fidelity Guarantee Fund at any time.

[15]     In his further submissions of 20 April 2007, Mr Erwood says that, in his experience, there has been no difficulty in his obtaining the names of members of the NZLS Council.  In a recent approach to the Secretary of the Fidelity Fund, he says that he was readily provided with the name of the current Auckland representative on the NZLS Council, Mr Gary Gotlieb.  Mr Erwood says that Chambers J’s name was given to him by the ADLS in about 1999 when he telephoned the ADLS regarding concerns he had in relation to his proceeding against the NZLS.  He was told that his concerns with the NZLS were not an Auckland matter.  When he then asked for the

name of an Auckland representative on the NZLS he could contact without having to make a toll call, he was given Chambers J’s name.

[16]     Mr Erwood next claims that he sent “several letters” to Chambers J after the telephone calls (and he maintains this position in his 20 April 2007 submissions). Although Chambers J does not recall receiving letters from Mr Erwood, he cannot rule out the possibility that he did.  If, however, Mr Erwood did send letters to him, Chambers J is certain that either he would have responded to them or he would have arranged for the relevant Society (whether the ADLS or NZLS) to respond.   No copies of such responses have been provided by Mr Erwood.  Mr Erwood says that these  letters  would  have  been  handwritten  and  he  does  not  keep  copies  of handwritten letters.

[17]     Mr Erwood asserts that he then wrote to the Attorney-General complaining about the conduct of Chambers J in the above matter.  The Attorney-General never copied the complaint to Chambers J and he has never seen such a complaint.  Nor has  he  seen  any reply by the  Attorney-General.    Indeed,  Mr  Erwood  does  not recollect receiving a reply to his letter.

[18]     Mr Erwood alleges that he next had dealings with Chambers J with respect to his claim against Countrywide Banking Corporation Limited.   This is the matter Erwood v District Court referred to in the 21 November minute – see at [9] above. Mr Erwood’s claim against Countrywide Banking Corporation had been dismissed by the District Court.  Mr Erwood filed an appeal against that decision and applied for a dispensation from court fees.  That was declined by Robertson J.  Mr Erwood then filed what purported to be an application for judicial review and again applied for a dispensation from fees.   This was declined by Chambers J on 14 November

2000.  He said:

I  have  studied  Judge  B  N  Morris’  decision.    I  have  read  the  points Mr Erwood wishes to take on the appeal.  I have also read his statement of claim in this proceeding and the grounds upon which he seeks a dispensation of fees.  It is clear that Mr Erwood intends to run exactly the same argument on the application for review as he does on the appeal.  It is clear that the sole ground for commencing the application for review is the hope that some other  judge  will  reach  a  different  conclusion  from  Robertson J  on  the question of dispensation of fees.  The application for review proceeding is

nothing more than a cynical attempt to side-step Robertson J’s decision of

9 November.

[19]     Mr Erwood asserts in his affidavit that he learned that Chambers J had been assigned to deal with the Countrywide case.  Mr Erwood is incorrect in that assertion (and in his 20 April 2007 submissions he accepts this).  Chambers J was not assigned to the Countrywide case.  The only matter Chambers J ever dealt with on that case (to the best of his recollection) was the application to dispense with filing fees.  That matter was dealt with on the papers and resulted in the minute of 14 November 2000 referred to above.

[20]     Mr Erwood asserts that he raised an objection to Chambers J dealing with the case with the senior deputy registrar of the High Court at Auckland.   Chambers J cannot comment on that, except to say that no objection was ever conveyed to him. Had Mr Erwood raised such an objection, we would have expected the court officer to refer that objection to Chambers J.  Mr Erwood asserts that, following Chambers J’s minute of 14 November 2000, he wrote to the head of “the civil section at the High Court at Auckland” expressing his objection to Chambers J having dealt with the application.  Again, if Mr Erwood did write such a letter, then we would have expected that to be referred to Chambers J.  Chambers J cannot recollect seeing such a letter.

[21]     Mr Erwood next asserts that Chambers J lodged a complaint concerning his conduct with Anderson J.   Chambers J does not recall ever having lodged such a complaint with Anderson J or anyone else.   Chambers J accepts, however, that, if Mr Erwood  had  written  to  the  registry  and  such  a  letter  had  been  referred  to Chambers  J,  then  it  is  possible  Chambers J  would  have  referred  the  letter  to Anderson J  if  it  contained  scurrilous  or  improper  matter.    Chambers J  cannot, however, recall this happening.

[22]     Mr Erwood then asserts Anderson J issued a minute rebuking Mr Erwood for the language he had used in relation to Chambers J.   The minute was written on

21 November  2000.    In  that  minute  Anderson J  was  dealing  with  a  document purporting to be yet another statement of claim by way of review with regard to the Countrywide matter and a further application for a dispensation from filing fees.

The document was rejected by Anderson J, as was the application for dispensation from fees.  Anderson J finished his minute in the following terms:

Finally, I refer to Mr Erwood’s personal comments about the Judges who made  the  decisions.    Mr Erwood’s  remarks  are  uncalled  for  and  highly improper.    The  patience  which  has  been  shown  to  Mr Erwood  by  the judiciary for many years is not inexhaustible.  He must in future comply with the Rules of Court and the dictates of courtesy in litigation.

[23]     Chambers J has no recollection of having seen that minute before it was filed by Mr Erwood in the course of this recall application.  We remark that it would not be usual in the High Court for Judges to be provided with copies of another Judge’s minute on a file they were no longer dealing with.   Mr Erwood now accepts that Anderson J’s minute, was issued because Mr Erwood had forwarded to him, as Executive Judge at Auckland, documents complaining about Chambers J and his decision on the matter of dispensation from filing fees.  We received the handwritten complaint that was sent to Anderson J in his latest memorandum of 30 April 2007.

The allegations relating to Ellen France J

[24] In the minute of 21 November 2006, referred to at [9] above, the following was said about Ellen France J:

As regards Ellen France J, Mr Erwood is correct that she, whilst at the Crown Law Office, formally instructed Mr McCoy to act as amicus curiae in the Privy Council (decision reported at [2002] 1 NZLR 1). To the best of her recollection, the Solicitor-General had already decided to instruct Mr McCoy. Her role was limited to the formal instructing of Mr McCoy and she does not recall turning her mind to the substance of the case. For completeness, Ellen France J was also involved in instructing Mr Radich to appear as amicus curiae in the High Court in an application to set aside summary judgment for their fees obtained by Glasgow Harley (and Ms Raylee Harley as counsel). In the subsequent Court of Appeal decision (reported at [2002] 1 NZLR 251), Mr Mathieson QC appeared for Mr Erwood and France J had no involvement in instructing him.

[25]     In his affidavit of 2 February 2007, Mr Erwood said it is his recollection that he telephoned Ellen France J while she was at the Crown Law Office and that he had spoken to her about aspects of Mr McCoy’s handling of the case.  He also expressed concern that she will have been privy to letters from Mr McCoy that “painted a bad picture of me”.

[26]     Ellen  France J  accepted  that  Mr  Erwood  may  have  had  a  telephone conversation with her while she was at Crown Law although she has no recollection of that.  She does recollect that there were conversations with other members of her team at Crown Law.  In Mr Erwood’s supplementary submissions of 23 April 2007, copies of correspondence to and from Ellen France J are attached.  This relates to a request by Mr Erwood for information from Mr McCoy with regard to an alleged undertaking by Glasgow Harley and its counsel not to sue for fees before the appeal had been finally disposed of.  Information was also asked for and provided about the appointment of Mr Mathieson.

Mr McKenzie QC’s instructions

[27]     In Mr McKenzie’s submissions of 5 February 2007 he states that some weeks prior to the hearing Mr Erwood had informed him of the names of a number of Judges in relation to whom Mr Erwood had concerns were they to hear the application.  He made particular reference to Chambers J because he had dealt with an application made on Mr Erwood’s behalf by Mr Warwick Smith.  Mr Erwood did not provide Mr McKenzie with the particular date or stage in the proceeding when that application was dealt with.  Nor had he provided Mr McKenzie with a copy of that application.  Mr McKenzie says that, as a result, he did not consider raising the Smith matter with the Court when the application was heard.   Mr Erwood did not attend the hearing.

Should we recall the judgment?

[28]     We do not consider that the judgment should be recalled (apart from in relation to costs).  First, we consider that Mr Erwood must be taken to have waived any objection to Chambers and Ellen France JJ sitting on the application.  All of the matters he now raises were known to him at the time of the hearing.   While we accept that he spoke to Mr McKenzie about not wishing Chambers J to sit on the application, he did not provide any supporting material at all.   Without this, not unnaturally, Mr McKenzie was unable to advance any recusal application.  This was

the direct result of Mr Erwood choosing not to brief his counsel fully on this matter and not to attend the hearing of the application.

[29] In addition, it appears that Mr Erwood waited until our judgment on the application was released before complaining to the Court. His letters of complaint were not received by the Court until 7 November 2006 – see at [3] above. This raises the suspicion that Mr Erwood was waiting to see the result of the application before raising his concerns.

[30]     Secondly, none of the matters raised by Mr Erwood would have provided grounds for Chambers and Ellen France JJ not sitting on the application and thus cannot provide grounds to recall the judgment.  Taking Ellen France J first, her role in the related proceedings was solely mechanical.   Even had her role been more extensive, we do not consider this would provide grounds for recall.   While the matters may have been related, the issues were different from those before the Court in this application and even the more extensive role alleged by Mr Erwood was very slight.

[31]     Moving to Chambers J, we take first the alleged contact with Chambers J before he took silk in 1992.   Mr Erwood does not give any details of the alleged contact.  Nor does he specify any of the matters he was involved in at this time.  This lack of specificity means that any alleged contact cannot provide grounds for recall and we discount it.

[32]     Next we deal with Chambers J’s involvement with Mr Smith’s application. This  was  a  minor  matter  and  the  application  was  without  precedent  or  merit. Deciding it would not have required any consideration of the substantive issues in the case.   The Smith application also bears no relationship to the application for special leave that was the subject of this Court’s judgment of 1 November 2006.  The main issue dealt with in that judgment was a technical argument as to the effect of ss 161(a) and 169(1) of the Law Practitioners Act 1982.   The argument was that these sections obliged the NZLS to reimburse all of Mr Erwood’s costs in pursuing his claim against the Solicitors’ Fidelity Guarantee Fund administered by the NZLS. It was thus in large part a technical argument on statutory interpretation.   It also

related to costs rather than the substantive claim.  For these reasons, Chambers J’s involvement with the Smith application does not provide grounds for recall.

[33]     As to the Countrywide matter, this was drawn to Mr Erwood’s attention in the Court’s minute of 21 November 2006.  It did not form part of the matters raised in the recall application and, in our view, Mr Erwood cannot now rely on it.  In any event, it was a different matter altogether and thus cannot conceivably have any effect on Chambers J’s consideration of this application.  The basis of the complaint appears to be that Chambers J must have formed an adverse view of Mr Erwood through dealing with the matter.  Certainly Chambers J formed an adverse view of the procedure Mr Erwood was attempting to follow.  This is not the same as forming an adverse view of Mr Erwood (particularly as the matter was dealt with on the papers).  Even had Chambers J formed an adverse view of Mr Erwood in relation to that matter, it could not conceivably have had any effect on Chambers J’s consideration of what was a technical argument on the special leave application.

[34]     Chambers J  was  unaware of  the  alleged  complaints  about  that  matter  (if indeed they were made) and of Anderson J’s minute.  Even if he had been aware of those matters, we would not have considered that they provided grounds for recusal, given the technical nature of the application for special leave before the Court and the fact that the complaints were apparently not pursued.  It cannot be the case that a Judge can be ruled out from ever dealing with a matter relating to a litigant because that litigant has once filed a complaint about that Judge.

[35]     As to the alleged contacts while Chambers J was at the NZLS, for the reasons set out at [12] - [14] and despite Mr Erwood’s further comments set out at [15], we consider that it likely that Mr Erwood was mistaken in his recollection as to having discussed his case with Chambers J while he was an ADLS or NZLS officer.  Even if there had been such contact, however, it is clear from Mr Ritchie’s affidavit that Chambers J had no formal role with regard to Mr Erwood or the fidelity fund.   In these circumstances, this cannot provide grounds for the recall of the judgment, particularly as the main issue in the special leave application was a technical point of statutory construction, divorced from the substantive claim.

Result

[36]     The application for recall is granted with regard to the costs award only. Order B of the judgment of 1 November 2006 is deleted and replaced by “There is no award of costs”.  The judgment is otherwise confirmed.

[37]     As Mr Erwood is legally aided, there is no award of costs in relation to this recall application.

Solicitors:

McKay Gilkison, Wellington for Applicant

Glaister Ennor, Auckland for Respondent