Ressels v Southern Response Earthquake Services Limited
[2024] NZHC 1264
•21 May 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-009-975
[2024] NZHC 1264
BETWEEN TREVOR STUART RESSELS
Plaintiff
AND
SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED
Defendant
Hearing: 17 April 2024 Appearances:
G D R Shand for Plaintiff
K M Paterson and L C Elliott for Defendant
Judgment:
21 May 2024
JUDGMENT OF ASSOCIATE JUDGE LESTER
(Recusal)
TREVOR RESSELS v SOUTHERN RESPONSE EARTHQUAKE SERVICES LIMITED [2024] NZHC 1264 [21 May 2024]
The Ressels’ proceeding
[1] Trevor Ressels and his late wife owned a property that suffered damage in the Canterbury earthquakes. Mr Ressels lodged a claim with the Earthquake Commission (EQC) for the damage. EQC does not cover damage to fences, driveways, patios, pavings or swimming pools.1 The excluded items are known as “Out of Scope” items (OOS).
[2] Mr and Mrs Ressels had cover for OOS items under their home insurance with AMI Insurance Limited (AMI), now Southern Response Earthquake Services Limited (Southern Response).
[3] Arrow International (NZ) Limited (Arrow) (now in liquidation), was acting on behalf of Southern Response. The Ressels’ claim for OOS items was settled following Arrow visiting their property in June 2014. Mr Ressels cash settled his claim for OOS items, the figure he was offered being based on Arrow’s assessment.
[4] Mr Ressels2 issued proceedings against Southern Response on 20 March 2023 claiming the amount offered by Southern Response for his OOS items did not include allowances for Preliminary and General (P&G), contingency or professional fees (together the allowances). Mr Ressels accepted $16,875.68 for OOS but says that if the allowances had been included he would have received an extra $5,585.85.
[5] Southern Response accepts it was obliged to pay for expert fees but only where the nature of the damage required the input of experts.
[6] Mr Ressels says there are between 7,500 and 9,500 other homeowners who suffered earthquake damage to OOS items who are in the same position as he, that is, they did not receive the allowances. Mr Ressels applied to sue as a representative of those home owners. Mr Ressels argued that if he could show he was entitled to the allowances, that would mean the thousands of other homeowners affected would also be entitled to the allowances.
1 Earthquake Commission Act 1993, sch 2.
2 Mrs Ressels died before Mr Ressels issued this proceeding.
[7] In a judgment released on 23 November 2023, I declined Mr Ressels’ application to sue as a representative plaintiff.3 I determined each homeowner’s rights are defined by the terms of their respective insurance policies. A homeowner who can elect to take a cash settlement will generally be entitled to an amount equivalent to the cost to repair damage covered by the policy. An insurer offering an “out of policy” cash settlement is likely to assess that offer on the same basis. This means each homeowner’s entitlement depends on the type of damage they have suffered — for example, while repairs to a swimming pool may require the input of an engineer or other professional, a repair of a cracked concrete path most likely will not. Accordingly, I determined it could not be said that all of the 7,500–9,500 members of the proposed class were in the same position when it came to an entitlement to the expert fee component of the allowances — that issue would turn on the nature of the damage in each case and was therefore a factual issue, rather than a legal issue which would be determined by a ruling in Mr Ressels’ case. Again, Southern Response accepts expert fees are payable but only if the facts required expert input on a case-by-case basis.
[8] As to P&G, Southern Response accepts this was payable but says this component of the allowances was in fact included in its costings which Mr Ressels disputes. Whether or not that was the case will depend on the costing exercise carried out for each homeowner. Therefore, this is also a factual question for each homeowner, dependent not on what was included in Mr Ressels’ pay-out, but on how each homeowner’s pay-out was calculated.
[9] As to the allowance for contingencies, I recorded in my judgment of 23 November 2023 that senior counsel for Southern Response, Mr Weston KC, formally acknowledged on behalf of Southern Response that it was liable for P&G and contingency. With that formal concession having been made, a proceeding to establish Southern Response’s liability for those aspects of the allowances was not required — that being what a representative action by Mr Ressels would be aimed at establishing. As Southern Response accepts each homeowner was entitled to P&G and contingency, each homeowner would then have to demonstrate whether the
3 Ressels v Southern Response [2023] NZHC 3344.
payment to them in fact included those allowances involving a case-by-case assessment. In short, given Mr Weston’s acknowledgement, there is nothing preventing the 7,500–9,500 homeowners advancing a claim for these allowances now (subject to the limitation issue addressed below). Accordingly, no representative action to establish that liability is required.
[10] There is also a limitation issue in relation to Mr Ressels’ claim for P&G. Southern Response has waived limitation in respect of contingency, professional fees and any interest payable in respect of those items but has not done so in relation to the P&G claim. In my November judgment, I held that Mr Ressels would have to rely on the late notice provisions of the Limitation Act 2010 to avoid his claim in respect of P&G being statute barred. Whether Mr Ressels can rely on the late notice provisions to avoid a limitation defence in respect of P&G is another factual issue which depends on circumstances personal to him. So again, a finding Mr Ressels could rely on late notice would not necessarily be a finding that would benefit other homeowners.
Mr Ressels’ recusal application
[11] Mr Ressels sought leave to appeal the decision on 7 December 2023. On 29 January 2024, Mr Ressels applied that I recuse myself from dealing with that application.
The unsuccessful applications
[12] Mr Shand, counsel for Mr Ressels, refers to a number of other decisions where Mr Shand acted for parties who suffered damage in the Canterbury earthquakes and also wished to bring representative actions.
[13]Mr Ressels, in his application, refers to the above findings and says:
Lester AJ’s history of making judicial decisions favourable to Crown funded entities (Sneesby, Mathias, Ideal Investments Ltd, and now Ressels), can only further a fair-minded observer’s reasonable apprehension of predetermination and/or bias.
[14] The reference to “Mathias” at [13] above is to a case where representative orders were made by consent and in a judgment released on 22 August 2022.4 Subsequent decisions in the Mathias proceeding include rulings in favour of Mr Shand’s client as well as against.
[15] Mr Shand’s clients’ applications (the unsuccessful applications) in each case were unsuccessful. In each of the cases in this Court, I was the Judge. Brief details of those judgments are as follows in chronological order:
(a)Sneesby v Southern Response:5 Mr Sneesby was declined leave to sue as a representative. That application effectively duplicating the one presently pursued by Mr Ressels.
(b)Ideal Investments Ltd v EQC:6 an application to sue as a representative
declined.
(c)Ideal Investments Ltd v EQC:7 an application for leave to appeal the decision of 9 March 2022 declined.
(d)Ideal Investments Ltd v EQC:8 application to the Court of Appeal for leave to appeal, declined.
(e)Sneesby v Southern Response:9 an application for leave to appeal the decision of 23 February 2022, declined. Mr Sneesby applied to the Court of Appeal for leave which was declined on 2 June 2023.10
(f)Sneesby v Southern Response:11 Mr Ressels applied to be joined as a party to Mr Sneesby’s claim. Mr Ressels’ application was declined.
4 Mathias v Earthquake Commission [2022] NZHC 2097.
5 Sneesby v Southern Response [2022] NZHC 262. 23 February 2022.
6 Ideal Investments Ltd v EQC [2022] NZHC 400. 9 March 2022.
7 Ideal Investments Ltd v EQC: [2022] NZHC 1079. 17 May 2022.
8 Ideal Investments v EQC [2022] NZCA 641. 20 December 2022.
9 Sneesby v Southern Response [2022] NZHC 2100. 23 August 2022.
10 Sneesby v Southern Response [2023] NZCA 206.
11 Sneesby v Southern Response [2023] NZHC 246. 21 February 2023.
(g)Sneesby v Southern Response:12 Mr Ressels applied for leave to appeal the decision declining his application to join the Sneesby proceedings, declined. Mr Ressels applied to the Court of Appeal for leave to appeal which was declined on 4 December 2023.13
(h)Ressels v Southern Response:14 Mr Ressels’ application to sue as representative plaintiff was declined. Application for leave to appeal filed and not heard because of this recusal application.
[16] In each case where I declined leave to appeal, the Court of Appeal also declined leave to appeal. The outcomes of the Court of Appeal decisions referred to above were not affected by any credibility finding by me as each decision was based on affidavit evidence. Accordingly, the Court of Appeal when declining leave, assessed whether each application for leave identified arguable errors of law that warranted appeal.
Recusal — the Guidelines
[17] Judges do not have a say in the allocation of cases and are obliged to sit on cases allocated to them unless grounds for disqualification exist. The grounds for recusal are founded on protecting public confidence in the independence and impartiality of the judiciary and the administration of justice.15 These principles are reflected in the High Court Recusal Guidelines (Recusal Guidelines),16 Judicial Conduct Guidelines (Conduct Guidelines),17 and the judicial oath,18 and are affirmed in the New Zealand Bill of Rights Act 1990 in relation to both criminal and (relevantly) civil jurisdictions,19 as well as recognised internationally.20
12 Sneesby v Southern Response [2023] NZHC 1316. 30 May 2023.
13 Sneesby v Southern Response [2023] NZCA 614.
14 Ressels v Southern Response [2023] NZHC 3344. 23 November 2023.
15 Philip A Joseph Joseph on Constitutional and Administrative Law (online ed, Thomson Reuters) at [17.25.5.1].
16 Geoffrey Venning “High Court recusal guidelines” (12 June 2017) Courts of New Zealand High Court recusal guidelines — Courts of New Zealand (courtsofnz.govt.nz). These are published by the Chief High Court Judge, in consultation with the Chief Justice, pursuant to the Senior Courts Act 2016, s 171.
17 Courts of New Zealand “Guidelines for Judicial Conduct 2019” About-the-judiciary/judicialconduct/20191112gjc.pdf.
18 Oaths and Declarations Act 1957, s 18.
19 New Zealand Bill of Rights Act 1990, ss 25(a) and 27.
20 International Covenant on Civil and Political Rights, art 14(1).
[18] The procedure for recusal is not contained in statute or court rules. However, as required by s 171 of the Senior Courts Act 2016, recusal guidelines are developed and published by the Chief High Court Judge to assist judges to decide whether they should recuse themselves from a proceeding. That provision was introduced to improve judicial transparency and accountability, and to address the Law Commission’s concerns that the procedure in respect to recusal was unclear.21
[19] The Recusal Guidelines provide general principles and guidance for particular circumstances in which recusal arises — those being where;
(1)a relationship exists;
(2)a judge served as a legal advisor in respect of the matter in issue in practice;
(3)there is an economic interest in the outcome of the proceedings; and/or
(4)a judge has previously made public statements of a firm opinion on the issue. The Recusal Guidelines also provide for circumstances around disclosures of interest.
[20]The general principles are (with my own emphasis added):
(a)A judge has an obligation to sit on any case allocated to them unless grounds for recusal exist.
(b)A judge should recuse themselves 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.
21 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [SC171.01].
(d)The test for this is a two-stage one:
(i)what is it that might lead to a reasonable apprehension by a fully informed observer that the judge might decide the case other than on its merits; and
(ii)whether there is a logical and sufficient connection between those circumstances and that apprehension.
(e)The question of recusal is for the judge who should consider:
(i)the above principles firmly and fairly and not accede too readily to suggestions of bias;
(ii)the burden passed to other judges if the judge recuses themselves unnecessarily;
(iii)a judge is not required to recuse themselves merely because the issues in the case are in some indirect way related to the judge’s personal experience or the judge has previously dealt with the case;
(iv)the 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; and
(v)if, after considering all relevant circumstances, there is doubt regarding whether there may properly be an appearance of bias, it may be prudent for the judge to decline to sit in that case.
(f)Conflicts of interest can arise in a number of situations and a judge should be alert to any appearance of bias arising out of connections with litigants, their legal advisors or witnesses.
(g)The apprehension of bias is case-dependent.
Recusal — the Saxmere test
The Saxmere decision
[21] The Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (Saxmere) identified the test for apparent bias.22 As reflected in the Guidelines above, a judge is disqualified if, in the circumstances, “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.23
[22]The test consists of two steps:24
(a)the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)whether there is a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
[23] The standard is one of “real and not remote possibility”, rather than probability, and is subject to waiver and necessity.25 The Supreme Court held that merely identifying some relationship is not enough; there must also be a “logical connection” between the relationship and the “feared deviation”.26 The test is directed at perception, not actuality of bias.
The fair-minded lay observer
[24] The test of the fair-minded lay observer is objective, and they are “neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision”.27 The observer is an informed one, understanding that a judge is expected
22 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZCS 72, [2010] 1 NZLR 35.
23 At [3].
24 At [4].
25 At [4].
26 At [20].
27 At [5].
to be independent, has an obligation to sit on any case allocated unless there are grounds for disqualification, and that New Zealand’s judicial system functions on the basis of making decisions irrespective of the merits or demerits of the litigants’ counsel.28 At the same time, the lay observer is not a lawyer and does not have detailed knowledge of the law.29 The fair-minded observer is not simply the “person in the street”, as suggested by Mr Shand in oral submissions.
[25] Ms Paterson, counsel for Southern Response, noted with reference to R v Sullivan, the independent observer is taken to understand that a judge has an obligation to sit on any case allocated to the Judge unless grounds for disqualification exist.30 Judges are not entitled to pick and choose their cases.31
Summarising the approach to be taken in this case
[26] The standard by which I need to assess the application is, how would an independent observer consider the grounds raised by Mr Shand? The independent observer is:32
(a)presumed to be intelligent and to view matters objectively;
(b)neither unduly sensitive or suspicious nor complacent about what may influence a Judge’s decision; and
(c)taken to be a non-lawyer, but reasonably informed about the workings of the judicial system, the nature of the issues in the case and the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias.
[27]The independent observer is also taken to understand that a judge:33
(a)is expected to be independent in decision-making and has taken an 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;34 and
28 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 22, at [8].
29 At [96].
30 R v Sullivan [2014] NZHC 519.
31 At [22].
32 At [20].
33 At [22].
34 Oaths and Declarations Act, s 18.
(b)has an obligation to sit on any case allocated to the Judge unless grounds for disqualification exist. Judges are not entitled to pick and choose their cases.35
[28] Such an observer would be aware of the contents of the Court of Appeal judgments declining leave in respect of the judgments listed above at [15]. The observer would be aware of the threshold that had to be met before prior rulings could found the appearance of bias referred to at [33] below.
Mr Ressels’ grounds
An appearance of bias?
[29] Mr Ressels, in his application, set out the following grounds in support of his application:
(3)The grounds on which the recusal order is sought is that Lester AJ might not bring an impartial mind to the questions of whether Mr Ressels is a suitable representative plaintiff and whether leave to appeal ought to be granted by reason of his:
[a]Previous conduct in the Sneesby proceeding where he refused to consider Mr Ressels as an alternative/additional plaintiff;
[b]Previous judgements in the Sneesby proceeding where he has made firm opinions around the common issues and the (lack of) benefits of any representative action against the defendant;
[c]Previous conduct in this proceeding, particularly where he made a 28 July 2023 stay order contrary to HCR 7.43(3) and the orders the parties sought by consent, and where he unilaterally made orders on 14 December 2023 that any notice of opposition need not be filed/served until a date that is contrary to HCR 7.24; and
[d]Previous minutes in this proceeding, particular his 7 September 2023 minute where he appears to consider the plaintiff’s counsel to have threatened him;
[e]Previous judgement in this and other proceeding(s), where he has acted contrary to his peers Paulsen AJ and Venning J who have followed the guidance of superior courts.
(4)The effect of Lester AJ’s conduct is that a fair-minded observer would have a reasonable apprehension of predetermination and/or bias. So, Lester AJ should recuse himself.
35 In Saxmere Company ltd v Wool Board Disestablishment Co Ltd, above n 22, per Blanchard J at
[8] referring to cases being “randomly” allocated.
(5)Additionally, the defendant’s 7 September 2023 memorandum creates further issues around bias. Rather than staying silent the defendant took the unusual step of declaring any recusal application to be entirely without merit; the defendant clearly wants/prefers Lester AJ to hear the representative application. In turn, Lester AJ clearly wants/prefers the defendant’s lawyers to continue arguing this case as shown by his 23 November 2023 minute. The minute shows Lester AJ in the context of a NZLS complaint giving his view, without being asked to, in favour of the defendant’s lawyers. This, along with Lester AJ’s history of making judicial decisions favourable to Crown funded entities (Sneesby, Mathias, Ideal Investments Ltd, and now Ressels), can only further a fair-minded observer’s reasonable apprehension of predetermination and/or bias.
[30] Mr Ressels went on to assert that my “previous conduct towards the plaintiff and his counsel shows a concerted effort to frustrate the claims of the plaintiff and 9,500 other homeowners”.
Actual bias?
[31] While maintaining that the basis of Mr Ressels’ application is that there is an appearance of bias, in addition to the comment in the preceding paragraph, Mr Shand’s submissions included the following:
… It is a concerted campaign by Lester AJ to frustrate opt-out class action claims brought by plaintiffs represented by counsel for Mr Ressels.
…
The approach Lester AJ has taken towards managing this proceeding and the Sneesby proceeding consistently and unfairly favours the defendant over the plaintiffs.
Lester AJ has looked enthusiastically for any impediments (to a representative action being brought).
[32] When asked whether the bias was in favour of a particular person or against a particular person, Mr Shand submitted there has been apparent bias in favour of the Earthquake Commission and Southern Response.
[33]Mr Shand submitted:
There is an appearance that Lester AJ has a problem with the plaintiff’s counsel.
[34] Ultimately, in my view, this submission suggests a sense of frustration by Mr Shand as to the outcome of the various proceedings listed at [15]. Hence his suggestion that the Court has some problem with him and, as I will refer to below, with the concept of representative actions generally.
[35] In the application, Mr Ressels also refers to a complaint against me made to the Judicial Conduct Commissioner (the Commissioner) on 25 January 2024. This was a complaint made by Mr Shand personally and alleged actual bias and pre-determination. The complaint was dismissed by the Commissioner.
[36] Rule 1.5.4 of the Recusal Guidelines notes the making of a complaint to the Commissioner does not of itself serve to disqualify the Judge from hearing cases involving the complainant. In any event, the complainant was not Mr Ressels — it was Mr Shand personally.
[37] Mr Shand records that dismissal of the complaint by the Commissioner “will embolden Lester AJ even further”. Mr Shand did not expand upon this statement when I asked him. It also comes very close to an allegation of actual bias, and has no foundation.
Discussion of the grounds relied on by Mr Ressels
The unsuccessful applications: grounds 3[a], [b], and [e] and in part (5) (at [29] above)
[38] Mr Shand summarised his submission based on the prior unsuccessful applications as being:
The accumulation of conduct leads to an available appearance of bias based on all of the judgments and orders made over time.
[39] The unsuccessful applications failed on their merits both before me and in the Court of Appeal.
[40] Mr Shand has referred to my series of rulings as showing favour to Crown funded entities. The Court of Appeal in Muir v Commissioner of Inland Revenue stated it is only in the rarest of circumstances that prior rulings might lead a reasonable person
to question whether a Judge would remain impartial in subsequent proceedings.36 The Court observed:37
We know of no common law jurisdiction which accepts that a Judge’s adverse rulings are disqualifying per se. The problem is rather whether an aggrieved litigant should be permitted to seek recusal on the basis of rulings that are either so patently erroneous or so disproportionate as to suggest that something untoward must have motivated them.
[41] Mr Shand was also critical of what he called the “flavour” of my judgments but did not submit that they could be described in the terms used in the Court of Appeal as “so patently erroneous or so disproportionate as to suggest that something untoward must have motivated them”. Had such been evident in the judgments on any of the unsuccessful applications, the Court of Appeal would undoubtedly have granted leave to appeal as sought. Referring to the unsuccessful application as “… decisions favourable to Crown funded entities…” does not alter the fact that the Court of Appeal did not see merit in the leave applications it determined.
[42] Mr Shand also submitted there were comments or observations made in my judgments on the unsuccessful applications adverse to his client’s position that were not directly relevant to the basis upon which the judgment was decided. That is not unusual. Judges often decide the outcome of an application on a single point but, because counsel have argued other matters, may go on to make observations or even findings on those points. Doing so is intended to benefit the parties by signalling how the Court views those matters as they then stand should they fall to be considered again in the future.
[43] The fair-minded lay observer would recognise the prior applications failed on their merits as confirmed by the Court of Appeal.
The stay — 28 July 2023: ground (3)[c] (at [29] above)
[44] An additional ground advised by Mr Ressels relates to the stay order I made on 28 July 2023. The context was that Mr Ressels, having unsuccessfully applied to join Mr Sneesby’s proceeding (above at [15(f))], filed his own proceeding in the
36 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [98].
37 At [101].
District Court which was then transferred to this Court. It is the proceeding in which Mr Ressels’ application to sue as a representative was declined. At the same time, Mr Ressels was seeking leave from the Court of Appeal to appeal the refusal to permit him to join Mr Sneesby’s proceeding.
[45] By Minute dated 28 July 2023, I stayed the transferred proceeding. Mr Ressels was attempting to pursue the same claim in this Court, as in the District Court (that is, in two separate proceedings). I considered it appropriate that the proceedings transferred from the District Court be stayed pending the outcome of Mr Ressels’ application for leave to appeal.
[46]The stay was subsequently lifted by consent.
[47]Mr Shand submitted:
(a)the stay was made without reference to the parties; and
(b)was to the prejudice of his client.
[48] The first proposition is correct. In relation to the second, other than general claims of delay, no prejudice has been identified. After the stay was put in place on 28 July 2023, no issue was taken by Mr Shand until 25 August 2023. The stay was lifted on 7 September 2023. This was little more than a case management issue. It cannot be said that Mr Ressels was entitled to have two live proceedings in respect of the same claims in this Court. As a matter of case management, Mr Ressels would have been required to elect which proceeding to pursue had his appeal succeeded. The stay was a matter of judgment as to the orderly and proper use of court proceedings, not reflective in any way of matters informing recusal.
[49] Associate Judge Osborne, as he then was, in Havenleigh Global Services Ltd and FM Custodians Ltd v Henderson,38 a recusal application, referred to Johnson v Johnson, where it was said:39
38 Havenleigh Global Services Ltd v Henderson [2016] NZHC 2356.
39 Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at [13].
…At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx.
[50] Since this observation was made in 1976, the robustness of case management has not gone backwards.
Timetabling direction of 14 December 2023 — also referred to in ground 3[c] (at [29] above)
[51] Mr Ressels also takes issue with the timetabling order I made on 14 December 2023.
[52] Mr Ressels’ application for leave to appeal the decision of 23 November 2023 was referred to me by the Registry on 14 December 2023. Rather than cause Mr Ressels delay through the Registry giving the application a first call date in a List (which most likely would have been 15 February 2024), I directed that any notice of opposition to the application was to be filed by 26 January 2024 with a first call by telephone conference at 2.15pm on 2 February 2024.
[53] Mr Shand took issue with these directions asserting they were contrary to r 7.24 of the High Court Rules 2016 (the Rules). I do not agree with that construction but, in any event, the effect of the timetabling direction was to Mr Ressels’ benefit. Whether or not Mr Shand is correct that r 7.24 required Southern Response to file a notice of opposition even if the application did not include a first call date, Mr Ressels would not be granted leave to appeal by default. McGechan on Procedure notes by reference to this Court’s decision in Muhunui v Attorney-General:40
The failure to file a notice of opposition has no formal legal effect although, ordinarily, the failure to do so will be a factor counting in favour of the application being granted. The Court must still assess any application on its merits ….
40 McGechan on Procedure, above n 21, at [HR7.24.03], citing Muhunui v Attorney-General [2017] NZHC 654.
[54] As with the July 2023 stay, the December 2023 Minute dealt with what was essentially a matter of case management, self-evidently intended to be for the benefit of both parties.
[55] Again, the timetable directions favoured Mr Ressels and were an administrative convenience for the benefit of all parties. Avoiding the need for Mr Ressels’ application to be dealt with in a List potentially saved costs for Mr Ressels and was a timetabling expediency. These matters do not reach the level of recusal.
Minute — 7 September 2023: ground 3[d] (at [29] above)
[56] Mr Shand, by memorandum filed following the issue of the July 2023 stay, requested that I recuse myself and recorded:
…a complaint will shortly be made to the Judicial Conduct Commissioner about Lester AJ’s conduct.
[57]By Minute dated 7 September 2023, I stated:
I decline to recuse myself. The threat of a complaint is not a basis for recusal and is not an appropriate matter for counsel to raise otherwise the threat of a complaint would become a device to achieve recusal.
[58] Mr Shand submits my reference to the “threat of a complaint” supports the basis of the recusal application, namely apparent bias.
[59] The observation I made in the Minute set out at [57] above is accurate. If counsel wished to make a complaint they should do so, not raise the prospect of such in the course of a request for recusal.
[60] Mr Shand, in his reply submissions on this application, when referring to the Commissioner’s dismissal of his complaint, recorded:
Counsel for the plaintiff flags a future judicial review of the JCC complaint/decision and considers it to be a live issue relevant to this recusal application.
[61] It matters not whether my characterisation of these two indications by Mr Shand as “threats” is semantically correct. The description adopted in my Minute
was simply a convenient way of emphasising correctly that any application for recusal should be grounded on existing facts and not on indications of a complainant’s definite or possible future actions.
Southern Response’s response to earlier recusal application: ground (5) (at [29] above)
[62] This refers to Southern Response taking the position in an earlier recusal application by Mr Ressels that it was without merit. Mr Shand suggests this shows Southern Response wanting me to remain as the Judge on the files. How that suggests an apparent bias by me is not explained by Mr Shand. There is nothing in this point.
Reference to Mr Shand’s competence: Minute of 23 November 2024 to ground (5) (at
[29] above)
[63] This ground relates to an exchange between Mr Weston and Mr Shand at the conclusion of the hearing on 10 November 2023 which resulted in the judgment released on 23 November 2023.
[64] In the submissions for Southern Response, there was reference in a heading to competence of counsel. Mr Shand in reply took issue with this reference. It was addressed by Mr Weston at the end of the hearing.
[65] A request for a transcript of the hearing was made and a transcript prepared, commencing with the close of Mr Shand’s reply where Mr Weston sought to address Mr Shand’s concerns as to the heading in Southern Response’s submissions. Mr Weston confirmed he was not saying Mr Shand was incompetent but said he could understand Mr Shand’s concern because the heading of the paragraph in question was inappropriate.
[66] I said in the Minute (of 23 November 2024) that provided the transcript extract to counsel, that I understood Mr Weston to confirm he was not questioning Mr Shand’s competence and “the tone of his submissions was consistent with that” (emphasis added).
[67]Mr Ressels’ recusal application says that the Minute shows me in the context:
…of an NZLS complaint giving [my] view, without being asked to, in favour of the defendant’s lawyers.
[68] Mr Shand submits that I clearly want Southern Response’s lawyers to continue arguing the case and my Minute supports that conclusion.
[69] First, this appears to be an issue between counsel and not an issue affecting Mr Ressels. In any event, the observation I made in the Minute of 23 November 2024 was expressly referring to the tone of Mr Weston’s retraction/explanation. Of course, the tone of Mr Weston’s submission is not apparent from the transcript.
[70] At the hearing of the recusal application, I asked Mr Shand if he was suggesting that my description of the tone of Mr Weston’s comments was inaccurate. Mr Shand did not suggest that was the case. Accordingly, I do not see any substance in this ground.
Other matters raised in Mr Shand’s submissions
[71] I touch briefly on matters that, albeit not referred to in the grounds of the application, were touched on in Mr Shand’s submissions.
[72] First, there is a complaint that my judgments are issued speedily. Mr Shand submitted the Court delays in matters that would benefit his clients, but it is quick to issue judgments in favour of EQC or Southern Response. I asked Mr Shand if he had compared the time taken by me to release judgments in the matters he was involved in with the time taken by me to release judgments generally. He had not made that comparison. Had he done so, he would have seen there is nothing atypical in the time taken to release the judgments in relation to the unsuccessful applications.
[73]Secondly, Mr Shand submits this was:
[n]ot a case where Lester AJ was rostered or allocated to hear Mr Ressels’ application. Lester AJ personally chose to hear the application. So any argument about duty to sit is not sustainable.
[74]I did not “choose” to hear the application.
[75] As I have said above, Judges hear cases that are allocated to them by others, typically the Scheduler or a Deputy Registrar. I am now the single List Judge assigned by the Chief High Court Judge to the Christchurch Earthquake List (reflecting the much reduced number of extant earthquake cases). Given Mr Ressels’ unsuccessful application to be joined as a party to Mr Sneesby’s proceeding (the judgment referred to at [15](f), it is not surprising that the Registry referred Mr Ressels’ application to me. Once an application is referred to a Judge they are expected to hear it.
[76] Thirdly, Mr Shand complains that I have made adverse comments about him. He refers to a paragraph in the judgment in Sneesby v Southern Response Earthquake Services Ltd.41 Mr Sneesby’s application to be a representative plaintiff was declined on the basis that he was not an appropriate representative because he had entered a full and final settlement with Southern Response. I said that with Mr Sneesby’s application having been declined, I would make limited comments on the remaining matters addressed by counsel given the extensive submissions filed.
[77]In respect of the definition of the class, I said:42
Definition of “class”
[63] As noted earlier, the original definition of the class to be represented by Mr Sneesby was amended the day before the hearing and amended further during the course of the hearing. Not surprisingly, counsel for Southern Response, given the first revision was received by email on the Sunday afternoon before the hearing, had not had a chance to fully consider the amended class but some preliminary concerns were raised. That, coupled with the fact that the common issues of fact and law were not defined, gives a distinct impression that the application is “under done”. Mr Weston went so far as to describe the application as “amateurish”.
[78]I went on to say:43
[64] Had I not dismissed the application on the grounds of the 2017 Settlement Agreement, I would have given Southern Response’s counsel further time to address the late amendments to the class and request Mr Shand to properly articulate the common issues relied on.
41 Sneesby v Southern Response Earthquake Services Ltd, above n 5.
42 At [63].
43 At [64].
[79] The comments in the Sneesby decision were provided to indicate that greater precision was required in relation to common issue and class definition.
[80] Ms Paterson in her submissions, recognised the Court has stated conclusions adverse to the plaintiffs represented by Mr Shand in respect of the identification of common issues — she observes that issue constitutes a key feature of an application to be a representative plaintiff. Ms Paterson submitted:
The fact that these decisions have been consistently adverse …. does not establish apparent bias. This can be seen by stepping through the relevant judgments. Such an exercise demonstrates that counsel for the plaintiff has put up the same argument in each case. Rather than addressing the Court’s earlier concern, Mr Ressels has simply repeated a failed argument. It cannot be surprising that the Court’s conclusions in the later case mirrors those in the prior judgments.
Conclusion
[81] A fully informed observer would reach the same conclusion as captured in Ms Paterson’s submissions.
[82] I note an observation made by Churchman J in Body Corporate 81012, 68792 and 378945 v Memelink:44
[39] A number of the matters raised by Mr Memelink are matters that, if they had any validity, would be the grounds for a successful appeal. Mr Memelink has almost invariably exercised his rights of appeal against the decisions he is unhappy with. If there had been any substance to his claims about my competence, diligence or knowledge of the law, they would have resulted in the Court of Appeal upholding his challenges. The fact that they have not done that is telling.
…
[41] The reality is that Mr Memelink, being unhappy with the decisions that I have given in a number of cases involving him or related parties, and having been unable to overturn those decisions on appeal, has decided to try and ensure that I am not able to sit on his cases in the future. Essentially, he is trying to “Judge shop” and get a preferred Judge appointed. That is not permitted in our legal system.
44 Body Corporate 81012, 68792 and 378945 v Memelink [2023] NZHC 835, (2023) 26 PRNZ 264.
[83] Those observations apply equally in this case. Significantly, Mr Shand, in his submissions, suggests that this matter should be referred to another named Associate Judge.
Outcome
[84] Mr Ressels’ application does not meet the criteria for recusal, therefore his application is dismissed.
Costs
[85] Counsel were not heard on costs. Any costs submissions are to be filed within 10 working days.
Postscript
[86] I record here that at the start of Mr Shand’s submissions, he asked if I had read his submissions. I had. Mr Shand then asked if his submissions had caused me to change my mind. I replied “no”. Such should have been obvious to Mr Shand. The outcome of the recusal application required that I consider the submissions to be made at the hearing. Ms Paterson would be rightly concerned if I said that I had changed my mind without giving her a chance to be heard.
[87] Mr Shand also asked if I had read his case bundle. I said “no”. Judges do not read every case in the parties’ case bundle ahead of a hearing — such would be an inefficient use of judicial time. It is the role of counsel to take the Court to passages in the decisions that they want to emphasise. In his reply, I asked Mr Shand if he wanted to take me to any passage in his case bundle — he declined saying such were covered in his submissions.
Associate Judge Lester
Solicitors:
Grant Shand, Auckland (for Plaintiff)
Buddle Findlay, Christchurch (for Defendant) Copy to counsel,
T C Weston KC, Christchurch (for Defendant)
17
0