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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 2836
Decision Date: 10 October 2023

CaseChat Overview and Summary

Pascoe v Minister for Land Information is a judicial review case heard by the High Court of New Zealand, Registry of New Plymouth. The applicants, Tony James Sofus Pascoe and Debbie Ann Pascoe, sought judicial review of a decision made by the Minister for Land Information. The dispute centred around the applicants' contention that the Minister's decision to delegate certain powers under the Public Works Act was unlawful. The applicants argued that the Minister's decision was not in accordance with the law and that they had been adversely affected by this decision.

The primary legal issue before the court was whether the judge, who had previously acted for the Minister for Land Information and provided legal advice to Land Information New Zealand, should recuse themselves from hearing the case. The applicants argued that the judge's past professional relationship with the Minister and other related parties created a reasonable apprehension of bias. The applicants submitted that the judge's prior involvement in similar matters, including acting for the Minister in another case, could lead a fair-minded observer to question the judge's impartiality.

The court considered the High Court Recusal Guidelines 2017, which require a judge to recuse themselves if there is a reasonable apprehension of bias. The judge disclosed their prior professional relationships and considered whether these relationships could influence their impartiality. The judge concluded that the prior involvement was not closely related to the current case and did not create a reasonable apprehension of bias. The judge found that the issues in the previous cases were distinct from the current application, and there was no logical connection that would lead a fair-minded observer to doubt the judge's impartiality. The judge also noted that senior counsel often represent both the executive and private parties, and that the judge had previously ruled against the respondent in other matters.

The court ultimately decided not to recuse itself, finding that the previous professional relationships did not meet the threshold for recusal under the High Court Recusal Guidelines. The court was satisfied that the judge could remain impartial and decide the case on its merits. The judge acknowledged the applicants' concerns but determined that the relationships did not create a reasonable apprehension of bias. The court proceeded to hear the merits of the judicial review application.

Orders