T v Wellington Newspapers Limited HC Wellington CP11/02

[2002] NZHC 14

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY CP11/02

ANY REPORT OR ACCOUNT OF THIS JUDGMENT SHALL NOT CONTAIN THE NAMES OF THE CHILDREN OR THEIR FAMILY NOR CONTAIN ANY PARTICULARS LIKELY TO IDENTIFY THEM.

BETWEEN T
Applicant

AND WELLINGTON NEWSPAPERS LIMITED
Respondent

Date: 22 January 2002

Counsel: M P Reed QC and P A Morten for the Applicant
J B Stevenson for the Respondent

Judgment: 22 January 2002

ORAL JUDGMENT OF WILD J

Solicitors
Harkness & Peterson, Wellington for the Applicant
Izard Weston, Wellington for the Respondent

Nature of application

[1] Under s 8 Judicature Act 1972 the applicant applies for interim orders staying the hearing by Judge Inglis of an application in the Family Court tomorrow.

[2] The orders are sought pending the substantive hearing of the applicant’s application for judicial review of Judge Inglis’ decision of 14 January 2002 not to disqualify himself from hearing tomorrow’s application.

[3] The application alleges, as does the statement of claim, that in making that 14 January decision, Judge Inglis erred in the deliberative process by:

[a] Failing to have regard to whether the circumstances indicated a real danger of bias on his part, in the sense that he might unfairly regard with disfavour the case of the applicant in relation to the issue under consideration by him;

[b] Failing to consider relevant factors, namely the factors set out in the applicant’s 8 March 2000 letter of complaint to the Principal Family Court Judge, which letter Judge Inglis refused to read;

[c] Acting unreasonably, in that no reasonable Judge, having properly considered the application, could conclude that it was appropriate for that Judge to continue to hear the fixture.

[4] The application states that the orders are necessary to preserve the position of the applicant who, it is claimed, will be unfairly prejudiced by reason of a delay in obtaining a final hearing.

Background

[5] Tomorrow’s application is by the respondent for leave to search the file T v T and publish a report of the proceeding which was under the Guardianship Act 1968. The application was filed on 7 December 2001. It is made under s 27A Guardianship Act and r 69 District Court Rules. The respondent publishes “The Dominion” newspaper.

[6] In an oral decision given on 14 January, in which he dealt with some preliminary matters and gave some preliminary directions, Judge Inglis said:

“[10] The final matter that I wish to mention at this stage is the request by the mother of the two children involved in the case, that I disqualify myself from sitting on the substantive hearing. I can understand the mother’s concerns, but they are not of a nature which would possibly justify any Judge in declining to sit for the hearing and determination of, what is essentially a legal issue which has very little to do with any determination that may have been made at earlier stages. It is for that reason that I decline to disqualify myself having, I may say, been pressed not to by Mr Stevenson because of my prior knowledge of the case, but I do not regard that in the circumstances as a material factor to persuade me not to disqualify myself.”

[7] The applicant had earlier, by letter dated 21 December 2001 from her solicitor to the Registrar of the Family Court, asked that Judge Inglis disqualify himself. The request was made on the basis “that the applicant had a perception, based on a two-week trial before Judge Inglis in 1999, of apparent bias on the part of the Judge”. With that letter was enclosed a copy of a letter the applicant herself had written on 8 March 2000 to the Principal Family Court Judge expressing her concerns as to the neutrality of Judge Inglis over the case.

[8] The case referred to by the applicant was heard over 10 days in October 1999. It involved an application by the father for resumption of access to the two children of the former marriage. The applicant (the children’s mother) cross-applied for removal of the father as guardian of the two children. Judge Inglis’ decision of 10 November 1999 is reported at (1999) 19 FRNZ 183. The outcome is expressed on p 244 of the report thus:

“The present proceedings are appropriately disposed of by orders:

(a) That the application by the mother for removal of the father as guardian be dismissed; and

(b) That the father’s application for access also be dismissed.

I specifically record that it is impossible, on the present evidence as it stands, to determine whether either of the children was sexually abused, or if so by whom, and that no further investigation is likely to clarify that position.”

[9] The gist of the complaints in the applicant’s letter of 8 March 2000 to the Principal Family Court Judge is that Judge Inglis was overtly circumspect (my word) during the hearing, and in his decision, about allegations that the children’s father and/or his accomplices had sexually abused the children.

[10] There is also criticism of decisions of Judge Inglis made in a minute of 2 February 2000, and again referred to by the Judge in a subsequent minute of 21 February 2000, directing that a copy of the Judge’s 10 November 1999 judgment could be supplied to Dr Parsonson, a psychologist who had given evidence in the proceeding, for professional purposes and for the purpose of making a complaint to the Psychologists’ Board. The parties’ names were first to be obliterated from the copy supplied to Dr Parsonson.

Applicant’s argument

[11] Mr Reed’s argument can, I think, be summarised as follows:

[a] The test under s 8 Judicature Amendment Act is the necessity of interim orders to preserve the applicant’s position.

[b] There is sufficient material before the Court to support the applicant’s allegation of apparent bias on the part of Judge Inglis, and to justify protecting her position in the interim by making the orders sought. Mr Reed referred in some detail to aspects of the Judge’s conduct toward the applicant and her counsel during the October 1999 hearing, necessitating Mr Reed’s intervention as counsel for the applicant in the latter stages of the hearing. Mr Reed said that all the applicant sought was a “fair day in Court”, and said that she does not believe she will receive that if the respondent’s application is heard by Judge Inglis, “because she was so traumatised and upset” by the Judge during the October 1999 hearing.

[c] As a matter of fairness generally, tomorrow’s hearing in the Family Court cannot proceed. The applicant does not know what is on the Court file which the respondent seeks to search. She does not know what the respondent wants or why. In other words, she does not know why it is interested in the proceeding. The application is simply not ready for hearing tomorrow.

[d] Quite separately from apparent bias, there must be a situation where a litigant can genuinely and on proper grounds believe she will not get a fair hearing because of past circumstances. Where that is the situation, then - in 2002 - the High Court should allow for the protection of the litigant. In support of this argument Mr Reed referred to a judgment of the Court of Appeal in Turner v Allison [1971] NZLR 833 where at 842 the Court said:

“It was the third factor that Wilson J thought most weighty. I agree with him that any indication by a party that it is felt that a judicial officer may not have an open mind on a matter which he is about to hear is generally accepted as sufficient reason for relinquishing the business to another.”

There followed the citation of a passage from Salmond J’s judgment in English v Bay of Islands Licensing Committee [1921] NZLR 127, 135, in which His Honour stated that the mere expression by a Judge of an opinion did not render the Judge unfit to adjudicate upon it.

Mr Reed made it clear that, if today’s application did not succeed, he would, at the commencement of tomorrow’s hearing, again be asking Judge Inglis to stand aside.

[e] The applicant was not opposed to tomorrow’s application being removed into the High Court, and it could be under s 4 Guardianship Act.

Respondent’s argument

[12] I precis Mr Stevenson’s points thus:

[a] The respondent neither consents to nor opposes the application, and abides the decision of the Court.

[b] The respondent newspaper’s primary interest is in the use of Court appointed psychologists and their methodologies. There is a legitimate public interest in that.

[c] The respondent has published a number of articles but none of them constitute a report of the proceeding T v T. The Family Court opened the door to publication of a report of the proceeding by approving publication of a statement by Ms Vincent, the Court appointed psychologist, and the respondent duly published that statement. The respondent now wishes to extend its interest in the proceeding in a way which may constitute publication of a report of it, and has accordingly applied for leave to search the Court file and for leave to publish a report. It would like that application heard as soon as possible.

[d] There is anyway no principle that a newspaper needs to disclose the nature of its interest in a matter. The guiding principle is freedom of information, as protected by s 14 of the New Zealand Bill of Rights Act 1990. As to the applicant’s complaint that she has not seen the Court file, neither of course has the respondent. So the situation is “a chicken and egg” one. Unless and until the respondent is able to search the Court file it will not know exactly what it wants to publish.

[e] The applicant’s complaints about Judge Inglis’ conduct of the October 1999 proceeding were outside the cognisance of the respondent. However, Mr Stevenson pointed out that Judge Inglis dealt with the Police investigation and the availability of the Police file at pp 238-239 of his 10 November 1999 judgment, and with the taking of notes during the hearing at p 239.

[f] Finally, Mr Stevenson emphasised that any publication by the respondent would protect the identity and the welfare of the children and the parties.

Principles under s 8 Judicature Amendment Act 1972

[13] As s 8 states, an interim order may be made if in the Court’s opinion “it is necessary to do so for the purpose of preserving the position of the applicant”.

[14] There is not, under s 8, the threshold requirement of a serious case for trial which applies where interim injunctive relief is sought. But the word “may” in s 8 indicates the discretionary nature of the relief. There is no basis for making interim orders - nor any point in doing so - if substantive orders are not a realistic possibility. It is better that the hopeless judicial review application never leaves the ground, than that it fly only briefly before crashing when heard substantively.

Application of the principles here

[15] I am firmly of the view that the interim orders sought, ought not to be granted. I have formed this view for six reasons, some of which overlap.

[16] First, I start by accepting, for the purposes of this application, that the applicant is correct in saying that Judge Inglis was unimpressed - or at least had great difficulty - during the 1999 hearing and in his 10 November 1999 judgment, with the allegation that the applicant’s former husband had sexually abused their two children, and with the evidence supporting those allegations. I also accept that the Judge tested his concerns in a robust manner with witnesses, including the applicant. I go so far as to accept that the applicant may have interpreted the Judge’s approach as rude rather than robust.

[17] I have some difficulty with some of the applicant’s other complaints, for example her complaint about the way in which the Judge dealt with her taking notes during the hearing. As Mr Stevenson pointed out, Judge Inglis deals with this at p 239 of his judgment. However, and again for the purposes of this application, I will accept that the applicant considered the Judge had been unduly rude to or critical of her in dealing with her note taking.

[18] But I do not consider that any of these matters comes even close to indicating bias on the Judge’s part, or providing proper grounds for a perception on the applicant’s part of bias against her by the Judge. There is a temptation on the part of parties to view the expression by a Judge of a view unfavourable to them as indicating bias. But judging is all about hearing evidence and submissions, forming views, perhaps testing them with a witness and/or counsel, and then making decisions. If expressing views about the case, whether tentatively or finally, constituted bias, then no Judge would be free from it.

[19] What is alleged here is not actual, but apparent bias - the appearance of bias. It is now well established in New Zealand law that the test of apparent bias is whether there exists a real danger or real possibility of bias on the part of the Judge. In considering that, everything depends on the facts: Riverside Casino v Moxon [2001] 2 NZLR 78 at 87-88 (CA); Man O’War Station Ltd v Auckland City Council [2001] 1 NZLR 552, 555-556 (CA).

[20] The perhaps critically relevant point about Judge Inglis’ 10 November 1999 decision is that he did not grant the father a resumption of access to the two children. That indicates to me that Judge Inglis was unable to discount the possibility of sexual abuse by the father and/or his accomplices of the children, and that he placed the welfare of the children first, as s 23 Guardianship Act required him to do. I will come back to s 23. I am unable to reconcile this outcome - clearly favouring the applicant’s position - with her perception of bias against her on the Judge’s part during the 1999 hearing and in his decision.

[21] I cannot see that the applicant’s allegation of apparent bias by Judge Inglis at the November 1999 hearing, and thus her allegation that he may be biased against her at tomorrow’s hearing, or at least that she may on good grounds have that perception, has any prospect of success.

[22] Secondly, even if I am wrong in that view, any appearance of bias on the Judge’s part at the November 1999 hearing, and any influence that may have had on the outcome as expressed in the Judge’s 10 November 1999 judgment, can have no real relevance to the hearing of tomorrow’s application. As Judge Inglis points out in his decision of 14 January 2002 presently under review, the issue tomorrow is essentially a legal one. It involves the interaction and balancing of ss 23 and 27A Guardianship Act. The decision for Judge Inglis will be whether the welfare of the children - which under s 23 is the first and paramount consideration for him - can be protected, whilst at the same time the s 27A public interest in the disclosure of Court proceedings be met by some form of publication of a report of the proceedings.

[23] Judge Inglis referred to this at some length concluding with the tentative view:

“It seems to me that in terms of s 23 of the Guardianship Act, the welfare of the children must take priority over any public interest there may be in broadcasting of their affairs, either directly or indirectly. It is the Court’s duty of course, to protect the children’s welfare and interests by, if necessary, suppressing publication of any material which might adversely affect their welfare and interests.”

[24] Again, I am unable to reconcile this view, albeit tentatively expressed, with the applicant’s perception that Judge Inglis will be biased against her at tomorrow’s hearing. Mr Reed confirmed that non-publication of any report of T v T by the respondent is the outcome which the applicant will seek at tomorrow’s hearing.

[25] The third point concerns what is often referred to as “forum shopping”. In her supporting affidavit the applicant recognises, on the advice of her solicitor, that she cannot pick the Judge she wants for tomorrow’s hearing, but denies attempting to do that. Indeed she cannot. And she must not be permitted to remove a Judge whom she prefers not hear the application, or feels uncomfortable with, simply by alleging apparent bias. Mr Reed accepts this, conceding that any allegation of apparent bias must be soundly based. I do not think the Court of Appeal in Turner v Allison, in the passage I have cited in paragraph [11][d] above, was saying that a mere allegation by a party that it felt a Judge may not have an open mind on the matter is sufficient to disqualify the Judge. But if that was the Court of Appeal’s view in 1971, then I think it is not in accordance with the law as the Court has much more recently stated it. I think the Court in Turner v Allison may simply have been saying that it might be unwise for a Judge to proceed to hear a matter in the face of a view, held by one of the parties, that the Judge had pre-determined it. The applicant makes the point that the T v T proceeding is now being managed by another Judge, Judge Johnston. She deposes that she cannot understand why Judge Inglis should have commented at the end of the 14 January 2002 hearing that he would have been happy not to hear tomorrow’s application, but felt bound to do so.

[26] This takes me to my fourth reason, which is that Judge Inglis, as the Judge who has largely dealt with the T v T proceeding, is uniquely qualified to hear tomorrow’s application. The consideration of the best use of judicial resources, always scarce, is an important consideration. I note that s 27A(1) provides that publication of any report of a proceeding under the Guardianship Act can only be “with the leave of the Court which heard the proceedings”. Although that refers to the Court and not the Judge, it reinforces my point that Judge Inglis is best placed to deal with tomorrow’s application. I note that Mr Stevenson for the respondent opposed removal of tomorrow’s application into this Court, on the basis that Judge Inglis was in the best position to deal with the application on its merits.

[27] The fifth reason for the view I take is that the interim orders sought seek only to prevent Judge Inglis hearing the application tomorrow. The applicant intends opposing tomorrow’s application. As a party she will thus have a right of appeal from the Judge’s decision, if she is dissatisfied with it. If she feels she can, responsibly, pursue an allegation of apparent bias on the Judge’s part in relation to tomorrow’s hearing and/or the decision the Judge makes, then she can make that a ground of appeal.

[28] My sixth and last reason for not granting the interim orders is that I am not able to accept that this Court should restrain the Family Court from hearing this application tomorrow on the ground of unfairness generally. It appears that the timetabling directions given by Judge Inglis on 14 January for tomorrow’s hearing have not been complied with. If they have not, then it will be a matter for the Family Court to decide whether the application can be fairly and properly dealt with tomorrow. Equally, it will be a matter for the Family Court, and is not for this Court, to decide whether the application can fairly and properly be heard before the applicant has had an opportunity to look at the Court file.

[29] To summarise, I am unable to accept that Judge Inglis’ 14 January 2002 decision discloses error in the deliberative process in any of the three respects alleged. I am also unable to accept that the interim orders sought should be made on the grounds of unfairness generally. Rather, I consider the Judge has correctly identified the legal issue he will face, and expressed a view, albeit only tentative which is sound. I also have confidence that the Family Court will deal with the application fairly and properly.

[30] I have already referred to the applicant’s intention to oppose tomorrow’s application. Her opposition will be in line with the tentative view expressed by Judge Inglis. The minute issued by Judge Johnston on 2 November 2000 indicates the desirability of the two children, aged at the time 14 and 11, being left to get on with their lives.

Outcome

[31] The application for interim orders is dismissed.

[32] The applicant sought costs in any event, and on an indemnity basis. This was on the basis that the respondent was pursuing its commercial interests. Mr Stevenson strongly opposed such an order. He submitted that the respondent had acted properly throughout and should not be visited with costs, and certainly not on an indemnity basis.

[33] I take the view that costs should follow the outcome of this application in the usual way. The respondent is accordingly entitled to its costs of today’s application on a 2B basis.