Siemer v Heron
[2011] NZSC 116
•29 September 2011
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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 6/2011 [2011] NZSC 116 |
| BETWEEN VINCENT ROSS SIEMER |
| AND MICHAEL HERON |
| AND RUSSELL MCVEAGH |
| AND FORCE 1 SECURITY |
| AND SIONE TANAKI |
| AND PIO SAMI |
| Hearing: 15 September 2011 |
| Court: Elias CJ, Tipping and McGrath JJ |
| Counsel: Appellant in person |
| Judgment: 15 September 2011 |
| Reasons: 29 September 2011 |
REASONS FOR JUDGMENT OF THE COURT
(RECUSAL APPLICATION)
(Given by McGrath J)
Prior to the hearing of this appeal, Mr Siemer, the appellant, applied for an interlocutory order that Blanchard and William Young JJ should not sit as members of the Court. The ground for the application was the appellant’s claim that both Judges had demonstrated apparent bias against him. The other three Judges of the Court heard the appellant orally in support of his application and, after considering his submissions, dismissed it, indicating that reasons would be given later. These are those reasons.
The substantive appeal is against a Court of Appeal judgment[1] on an application for leave to appeal against an order of the High Court[2] which fixed security for costs for an appeal from the District Court.[3] In its judgment, the Court of Appeal also addressed the merits as if the appellant were exercising a right of appeal. The Court’s judgment refused leave to appeal. This Court subsequently gave leave to appeal against the Court of Appeal’s judgment on the question of whether the applicant had a right of appeal rather than merely being entitled to bring an application for leave to appeal.
[1]Siemer v Heron [2010] NZCA 610.
[2]Siemer v Heron HC Auckland CIV-2008-404-8058, 27 March 2009 (Minute of Venning J).
[3]Siemer v Heron DC Auckland CIV-2008-004-0479, 3 December 2008.
The appellant’s application in respect of Blanchard J arose from his concern over a direction that the Judge gave the Registrar of this Court in relation to a review of the Registrar’s decision fixing security for costs to be given by the appellant in this appeal. Blanchard J directed the Registrar to provide the respondents with a document received from the appellant containing information concerning his financial position. This had been submitted to the Court in support of the appellant’s application for review by a Judge of the Registrar’s decision fixing security for costs at $1,000. The appellant sought, and on review obtained, waiver of the requirement that he give security.
The appellant, however, submitted that the provision to other parties of the information as to his means was a departure from standard practice and a breach of his privacy. He has complained to the Judicial Conduct Commissioner. Before us he contended that these circumstances demonstrated apparent bias against him on the part of Blanchard J in the present litigation so that the Judge should not sit on the appeal.
In reviewing the Registrar’s decision to fix security for costs, Blanchard J was bound to act judicially, which required that he accord natural justice to the respondents to the appeal who had an interest in the subject of the review. This meant that the Court had to provide those parties with all the factual material put forward by the appellant in support of his application. Blanchard J was accordingly obliged to give the direction he did and in those the circumstances there is no basis for the recusal application. We emphasise that, even if we had disagreed with what the Judge did, the mere fact that a judge makes an erroneous adverse decision on such a matter, to which a litigant takes offence, would not of itself give rise to circumstances which a fair-minded and informed observer might consider demonstrated apparent bias by the judge. For these reasons we dismissed the application in respect of Blanchard J.
In relation to Young J, the appellant raised three grounds which he contended gave rise to apparent bias of the Judge. The first concerned the hearing in the Court of Appeal of a different appeal involving the appellant in 2007. Young J, then President of that Court, presided at the hearing at which the appellant appeared on his own behalf.
The appellant took issue with the extent of interruption of his cross‑examination of a witness by Young J as the presiding Judge, submitting that it demonstrated a closed mind as to the appellant’s rights. We have read the transcript of the hearing and are satisfied that the Judge was doing no more than what was reasonably necessary to keep a lay litigant to relevant matters during the course of cross‑examination of a witness. Presiding judges of all courts have a responsibility to ensure that litigants, represented or not, do not spend time on irrelevant matters in court hearings or otherwise conduct their litigation in a way that is wasteful of the resources of the court or the time of other participants. Overall, the circumstances plainly did not give rise to a situation of apparent bias.
The circumstances giving rise to the second ground concern a decision made by Young J earlier this year, as a member of this Court, in different litigation in which Mr Siemer had applied for leave to appeal against a judgment of the Court of Appeal. The Judge indicated that a request by the appellant for a copy of the transcript of the Court of Appeal’s hearing would be determined after submissions on leave had been received by the Court. The appellant’s objection to the decision is based on his belief that he needed the transcript to prepare leave submissions.
The Judge’s decision was, however, entirely justified. There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters generally on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions. In this case, the Judge was clearly of the view that in the circumstances it was preferable that assessment of the need for a transcript be made after the Court was better informed of the nature of the grounds for the proposed appeal, and their merit. Again, the appellant took exception to what was a routine judicial decision. We are satisfied that these circumstances would not have given rise to any appearance of bias in the eyes of a fair-minded observer.
The final ground for recusal arises because the appellant has a website on which habitually he makes criticisms of the integrity and competence of individual judges. He refers to an entry on that website in which he makes allegations of unethical actions by Young J when a practitioner. The allegations do not relate to any litigation or matter in which the appellant was involved. Having made these allegations, the appellant contends that their effect must have been to displease the Judge to the extent that he would be unable to rule impartially on the appellant’s appeal to this Court. The impact on the Judge was said to be compounded by the fact that the appellant has also complained to the Judicial Conduct Commissioner about Young J’s actions.
It is well-established that apparent bias arises only if a fair-minded and informed lay observer might reasonably apprehend that there is a real and not remote possibility that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[4] The observer will not adopt the perspective of a party seeking recusal unless objectively it is a justified one. It is necessary for those making decisions on whether there is apparent bias in a particular situation first to identify what is said that might lead a judge to decide the case other than on its merits and, secondly, to evaluate the connection between that matter and the feared deviation.
[4]Saxmere Company Limited v Wool Board Disestablishment Company Limited [2009] NZSC 72, [2010] 1 NZLR 35.
The circumstances which the appellant says give rise to apparent bias of Young J on the third ground come down to his having made serious allegations about the Judge on his website and the appellant’s perception of the likely effect on the Judge of his displeasure at those allegations. The issue we must decide, however, is whether the circumstances may lead a fair-minded observer to the view that the Judge might not bring an impartial mind to the matter in issue.
A material factor here is that it is the appellant’s own conduct that has created the situation said by him to give rise to apparent bias. He has chosen to attack the integrity of Young J. In this context, the requirement that the appellant show that objectively the nature of the situation is such as to cause concern that it may influence the Judge’s decision-making is of particular importance. The fair-minded and informed observer will, amongst other considerations, recognise that the public is entitled to be reassured that parties to litigation are not able unilaterally to create situations of apparent bias that enable them to require change to the composition of courts hearing their cases, or to have cases reheard following an unfavourable decision. Indeed, otherwise situations could arise in which no member of a court would be able to sit. These are further reasons why a person asserting a situation giving rise to a reasonable apprehension of bias must establish clearly, as well as objectively, that a judge might appear to be biased.
It is also relevant in cases such as the present that there are strong institutional safeguards within the system. Following appointment, judges take an oath committing them to independence and impartiality in their judicial service. They promise to do right to all manner of people without fear or favour, affection or ill-will. Judges are also accustomed, on a daily basis, to putting aside their views of litigants appearing before them that are not relevant to the issues. This applies whether the litigants are self-represented or have counsel. Their commitment to proper exercise of the judicial function and their experience in discharging that commitment equip judges to administer justice impartially, without being distracted by extraneous events such as the reactions of the parties to what they decide or do. This is so even where there has previously been an expression of strong concern by the litigant over what the judge has done such as by lodging a complaint or seeking the recusal of the judge.
Bearing all these matters in mind, we did not consider the appellant’s contention that Young J was apparently biased against him had been objectively made out. Accordingly the application for recusal failed against both Blanchard J and Young J.
Solicitors:
Bell Gully, Auckland for First and Second Respondents
Swarbrick Beck, Auckland for Third, Fourth and Fifth Respondents
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