Pascoe v Minister for Land Information

[2023] NZHC 2836

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2021-443-48

[2023] NZHC 2836

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

TONY JAMES SOFUS PASCOE AND DEBBIE ANN PASCOE

Applicants

AND

MINISTER FOR LAND INFORMATION

Respondent

Hearing:

2 October 2023

Counsel:

A Webb for Applicants

R L Roff and S Eldridge for Respondent

Judgment:

10 October 2023

JUDGMENT (No 1) OF ISAC J

[Application for recusal]

Introduction

[1]On 29 September 2023 I issued a Minute recording:1

[1]        I have recently been assigned as the judge to hear the plaintiffs’ application for judicial review on 2 October 2023.

[2]        When in practice I acted for the Minister for Land Information between approximately 2017 and 2020 in proceedings under the Public Works Act 1981 that were unconnected to the present case. I provided advice to Land Information New Zealand on at least two other matters during this period. I also note that Mr Simon Espie is a deponent for the respondent. I recall dealing with Mr Espie in his capacity as chief legal adviser for LINZ from time to time. I would not describe my contact with him as regular or extensive.

1      Pascoe v Minister for Land Information HC New Plymouth CIV-2021-443-48, 29 September 2023 (Minute of Isac J) (footnote omitted).

PASCOE v MINISTER FOR LAND INFORMATION [2023] NZHC 2836 [10 October 2023]

[3]        Under the High Court Recusal Guidelines 2017, a judge should make disclosure to the parties of matters that might be relevant to their consideration of a recusal application. Having considered the Guidelines, I do not currently consider that relationship exists with a party that would create a reasonable apprehension of bias, because I do not currently consider there is a logical connection between the former relationship and its capacity to influence me to deviate from the course of deciding the case on the merits alone.

[4]        However, as there may be matters the parties wish to raise that I am not currently aware of, it is appropriate that I make this disclosure so they can consider their position and raise any concern at the commencement of the hearing on Monday.

[5]        I regret the late advice but I had not been aware of the issue until now. My inclination is to proceed with the hearing on Monday and deal with any recusal application, if one is advanced, as a preliminary issue.

[2]        In  response,  Mr  and   Mrs  Pascoe   personally  filed  a   memorandum   of  1 October 2023 in which they submitted that I should recuse myself from hearing their application for judicial review. Broadly the grounds for recusal are:

(a)I acted for the Minister of Land Information between 2017 and 2020 in relation to Minister of Land Information v Dromgool.2

(b)In addition, I provided advice to LINZ on at least two other matters during the relevant period but had not disclosed what they were.

(c)In my capacity as counsel, I had dealt with Mr Simon Espie, LINZ’s chief legal advisor. Mr Espie had provided an affidavit in opposition to Mr and Mrs Pascoe’s application for judicial review, and, according to the applicants, “the matters that Mr Espie is now giving evidence on relate to the same time period when Mr Espie would likely to have been effectively instructing and receiving advice from Isac J”.

(d)The  Dromgool  proceedings  is  “front  and  centre”   in   Mr   and Mrs Pascoe’s judicial review proceeding, and there is an overlap between that proceeding and their application for judicial review.

2      Minister for Land Information v Dromgool [2021] NZCA 44, [2021] NZRMA 382.

[3]        Mr and Mrs Pascoe submit that I would be unlikely to rule against a former client or against any advice that I may have provided to the Minister or LINZ in that capacity. In addition, the Minister and LINZ, including Mr Espie, are “Crown actors” about whom they submit I have formed a view being former clients.

[4]        At the hearing, Mr and Mrs Pascoe were represented by Mr Webb. In addition to the matters set out in the applicants’ memorandum, Mr Webb made brief submissions, drawing my attention to the relevant test for recusal set out in the High Court Recusal Guidelines 2017, as well as provisions that his clients considered could be relevant to my decision. These were cls 1.6, 3.1 and 7.5.

Applicable principles

[5]The general principles I apply are these:3

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.

3      High Court Recusal Guidelines 2017 at [1.1]–[1.7].

1.5.2A judge should be mindful of the burden that passes to other judges if the judge recuses him or herself unnecessarily.

1.5.3A 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.

[6]        In addition to these general principles, the recusal guidelines provide guidance for specific situations:

(a)where a relationship exists between a judge with a party, lawyer or witness;4

(b)the need for recusal where a judge has served “as a legal adviser in respect of the matter in issue when in practice”;5

(c)recusal where a 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;6

4      At [2.1] to [2.4].

5      At [3.1] and [3.2].

6      At [4.1] to [4.3].

(d)where a case concerns a matter in which the judge has made public statements of firm opinion about the issue before the court.7

Consideration and result

[7]        Having considered the issues raised by Mr and Mrs Pascoe against the requirements of the Guidelines, I am not satisfied that it is necessary, or appropriate, to recuse myself as the Judge.

[8]        None of the matters in respect of which I previously had involvement on behalf of Land Information New Zealand are, to the best of my recollection, remotely relevant to the issue raised in the current proceeding. There is no ongoing relationship, pecuniary or otherwise, with a party to the proceeding, I have no view of the respondent or its officers which might predispose me to a particular outcome or, more relevantly, which a fair minded fully informed observer would reasonably apprehend might cause me not to be impartial in the circumstances of the case. And while I may have dealt with Mr Espie in my former role, there is nothing in his affidavit for the purposes of the issue I must determine that amounts to a contested fact or that puts his credibility in issue.

[9]        In addition to these matters, the fully informed observer would be aware that senior counsel will commonly act both for and against the executive at the same time, as was the case with my own practice. They would also be aware that I have, in my capacity as a Judge of the High Court, previously found against the respondent.8

[10]      I do not accept Mr Webb’s submission that “broadly” the issue in Dromgool concerns the same issue as the present case. Dromgool concerned the obligations of the Minister to consider alternatives when undertaking a compulsory acquisition on behalf of a requiring authority. The issue in the present case concerns the lawfulness of a proposed delegation by the Minister of powers under the Public Works Act pursuant to s 28 of the State Sector Act 1988. Even if at some general level it could be said that the issues bore a relationship, the fact that I had acted as counsel for the

7      At [5.1] and [5.2].

8      Logan v Minister for Land Information [2021] NZHC 945 and Logan v Minister for Land Information [2021] NZHC 1050.

Minister would not lead a fully informed lay observer to have a reasonable apprehension that I might not bring an impartial mind to the question I am required to decide.

Isac J

Solicitors:

Thomson, O’Neil & Co, Stratford for Applicants Crown Law, Wellington for Respondent