WARREN ERNEST BEERE AND GEORGE BULLOCK PHILLIP RAYMOND NOTTINGHAM ROBERT EARLE McKINNEY DERMOT GREGORY NOTTINGHAM

[2024] NZHC 3174

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2416

[2024] NZHC 3174

BETWEEN

WARREN ERNEST BEERE

Plaintiff

AND

GEORGE BULLOCK

First Defendant

PHILLIP RAYMOND NOTTINGHAM
Second Defendant

ROBERT EARLE McKINNEY
Third Defendant

DERMOT GREGORY NOTTINGHAM

Fourth Defendant

Hearing:

30 September 2024

Appearances:

A J Steele and Luke W Dixon for the Plaintiff Defendants are self-represented

(Mr Dermot Nottingham and Mr Phillip Nottingham).

Judgment:

31 October 2024

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

Application for recusal

This judgment was delivered by me on    31 October 2024 at  3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:

Patterson Hopkins (Bill Patterson/Luke Dixon), Auckland, for the Plaintiff

Copy for:

Andrew J Steele, Barrister, Auckland, for the Plaintiff

G Bullock/P R Nottingham/R E McKinney/D G Nottingham, Auckland (the Defendants/applicants)

BEERE v BULLOCK [2024] NZHC 3174 [31 October 2024]

Introduction

[1]                  By application dated 12  April  2022,  the  defendants  applied  for  orders (the Strike Out Application):

(a)to debar the plaintiff’s solicitors and counsel;

(b)to find the plaintiff’s counsel in contempt;

(c)to strike out the proceedings.

[2]                  By judgment dated 31 May 2023, I dismissed the defendants’ Strike Out Application (the Strike Out Judgment).1 By application dated 26 June 2023 the defendants have applied for leave to appeal the Strike Out Judgment.

[3]The defendants applied for me to recuse myself from the proceedings.

[4]                  The application for recusal was heard on 30 September 2024. The following submissions were received in respect of the hearing:

(a)a  synopsis  of  submissions   from   the   second   defendant   dated  16 September 2024;

(b)a synopsis of submissions by the third defendant dated 16 September 2024;

(c)a synopsis of submissions for the plaintiff dated 23 September 2024, which referenced submissions made by counsel for the plaintiff dated 23 November 2023;

(d)a written version of the oral submissions made at the hearing by the fourth defendant dated 30 September 2024.

[5]                 Terms used in this judgment which are defined in the Strike Out Judgment have their defined meanings in this judgment.

1      Beere v Bullock [2023] NZHC 1172.

Legal principles

[6]                 Section 171 of the Senior Courts Act 2016 provides for development and publication of recusal guidelines for the High Court. The resultant guidelines include:2

1.2 A Judge should recuse himself 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.

[7]                 These guidelines give rise to a two-stage test which was articulated by the Court of Appeal in Muir v Commissioner of Inland Revenue where the Court stated:3

In our view, the correct enquiry is a two-stage one. First, it is necessary to establish the actual circumstances which have a direct bearing on a suggestion that the Judge was or may be seen to be biased. This factual enquiry should be rigorous, in the sense that complainants cannot lightly throw the “bias” ball in the air. The second enquiry is to then ask whether those circumstances as established might lead a fair-minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the instant case. This standard emphasises to the challenged Judge that a belief in her own purity will not do; she must consider how others will view her conduct.

The defendants’ submissions

Second defendant’s submissions

[8]                 The second defendant’s grounds for seeking my recusal, as summarised from the submissions, are that I:

(a)failed to rule or make directions in relation to statements of defence and the requirement for the plaintiff to  respond  in  accordance  with  High Court Rules 7.62 and 7.63 as a minimum;

(b)was overly familiar with the plaintiff, referring to him as “Warren”;

2      Courts of New Zealand, “High Court Recusal Guidelines” (12 June 2017)

at 1.2.

3      Muir v Commissioner of Inland Revenue [2007] NZCA 334; [2007] 3 NZLR 495 at [62].

(c)failed to address the fact the plaintiff is only a discretionary beneficiary and therefore has no legal right to sue the Trust or trustees but for criminal fraud, which the plaintiff has also confirmed is not being argued;

(d)failed to restrict the proceedings to the causes of action claimed in the plaintiff’s statement of claim - raising questions that either, are not in the statement of claim, cannot be answered because the settlor has passed away, or the Court has no authority or jurisdiction to consider.

Third defendant’s submissions

[9]                 The grounds advanced for my recusal by the third defendant are, in summary, that I:

(a)was overly familiar with the plaintiff by referring to the plaintiff as “Warren”;

(b)consistently ignored and failed to address perjury raised by the defendants;

(c)ignored the fact that the plaintiff had no standing or right to sue in relation to the Trust or the trustees when he is only a discretionary beneficiary;

(d)consistently failed to address the plaintiff’s failure to respond appropriately to the requirements of High Court Rules 5.62 and 5.63;

(e)failed to restrict the plaintiff in his own responses to the issues actually raised in the statement of claim, alternatively, if I felt the additional issues had merit, required the plaintiff to amend his statement of claim appropriately;

(f)allowed the plaintiff to continue following the submissions by the plaintiff that not only was criminal fraud not being argued but neither

was equitable fraud, with the strongest remaining accusation being a breach of trust, knowing full well that criminal fraud is the only “level” of accusation that allowed the matter to be brought before the Court in the first place;

(g)failed to strike out parts of the statement of claim the plaintiff has subsequently acknowledged were wrong and therefore should not continue and that I made no comment to the plaintiff’s counsel for not proactively withdrawing these claims. This relates to aspects of the statement of claim in respect of the Beazley Place property;

(h)raised questions about the settlor of the Trust that cannot be answered because the settlor is deceased and relate to some of the contents of the settlor’s last will, which has been through the process of probate in both New Zealand and Australia, and in the defendants’ contention, I do not have authority to question the contents of that will;

(i)failed to clearly articulate why I had made the decisions and admissions that I have.

Fourth defendant’s submissions

[10]              The grounds for my recusal as set out in the fourth defendant’s submissions are, in summary, that I:

(a)ignored the fraudulent pleadings in the statement of claim and the overwhelming evidence that the allegations as to fraud in the statement of claim were fraudulent, were made out in evidence supplied by the defendants supporting positive allegations of fraud as an affirmative defences in the statements of defence and the plaintiff refused to answer as required under rr 5.62 and 5.63, meaning that the Court was required to find the allegations were true by the defendants against the plaintiff and his lawyers requiring the Judge to strike out the statement of claim and find the plaintiff and his lawyers in contempt;

(b)ignored admissions by the plaintiff’s lawyers in relation to enquiries by the Registrar-General of Lands that they had made fraudulent statements which they knew to be fraudulent prior to their making;

(c)ignored the fact that the discretionary beneficiary has no standing to sue the Trust or the trustees, and ignored the fact that the plaintiff had committed perjury and counsel for the plaintiff had lied about what constituted perjury;

(d)ignored the fact that the plaintiff’s counsel refused to get instructions as to whether they were involved in the theft of Trust documents when it was proved they were;

(e)ignored the perjury proved by correction in the plaintiff’s counsel’s lies as to what constitutes perjury and misconduct and not admitting perjury until after the trial when he was “cornered”;

(f)ignored the documents alleged to be “unusual”, which corroborated the plaintiff’s fraudulence, and the allegations of fraud made by the plaintiff and his lawyers to the Court and the Registrar-General of Lands that the plaintiff was not the sole beneficiary, and the last will of the settlor of the Trust was not in 2008 and the defendants were all trustees and beneficiaries.

[11]The fourth defendant also alleges that I have acted perversely in that I:

(a)alleged that, although there was a strong case  that the transfer to     Mr Nottingham of the Northland properties was for a considerable consideration, and the statement of claim containing criminal fraud allegations had been knowingly made when the plaintiff was aware the statement was purposely false and the purposely false statement had been promoted to the Registrar-General of Lands in order to obtain a caveat when admitting to the Registrar-General of Lands the claims were false as were the declarations and undertakings they had held in

evidence as to the truth of the certifications, should not be struck out and that the hearing should still be held to “investigate” the documents;

(b)alleged  that,  although  there  was  a  strong  case  the  transfer  to   Mr Nottingham or Mr McKinney of the Beazley Place property in their personal capacity never occurred and it remained in the control of the Trust, meaning that the allegations of criminal fraud where no consideration was paid was patently false, and this allegation had knowingly been made when the plaintiff was aware the statement was purposely false, should not be struck out, and that a hearing should still be held to “investigate” the documents;

(c)awarding costs against the defendants and referring to the plaintiff by his first name “Warren” and the alleged allegations as proved against the plaintiff’s lawyers were without foundation. This was a perverse finding that proved my actual bias and judicial corruption;

(d)did not report the admissions of the plaintiff’s solicitor to the Registrar- General of Lands that he had only a suspicion and held no evidence whatsoever to support the caveats;

(e)did not report the plaintiff as a discretionary beneficiary who had no standing and could not bring a suit and, even if he could bring a suit in a derivative claim, “special circumstances” are only fraud or other dishonesty and no dishonesty occurred, as admitted by the plaintiff’s counsel in his submissions;

(f)ignored the plaintiff’s counsel’s submissions that no fraud was present and he would never claim fraud, but this was a lie in the statement of claim and the caveats clearly falsely assert fraud as a cause of action and that the properties were transferred for no consideration and where the defendants had no claim of right.

[12]              The fourth defendant also alleges that I acted perversely, in summary, by not saying to the plaintiff’s counsel that:

(a)the allegations made under oath by the plaintiff about the document dated 1 October 2019 were patently false, and why was the plaintiff’s counsel not admitting this as he should have admitted it when he was made aware of it before the trial;

(b)the Trust still owned the Beazley Place property and so the allegations in the statement of claim were patently false and should never have been made and should be struck out;

(c)the Northland properties were transferred in a well documented set-off and the allegations in the statement of claim were patently false and should never have been made.

[13]              The fourth defendant also alleges that I acted perversely by keeping fraudulent proceedings afoot on fraudulent grounds so that it would save the plaintiff and the plaintiff’s lawyers from orders sought for contempt and I was involved in trading influence with the plaintiff’s solicitors.

Allegations in the application for leave to appeal the Strike Out Jjudgment

[14]              There are various further allegations in the application for leave to appeal dated 26 June 2023 related to my recusal that I:

(a)committed acts amounting to a criminal breach of various sections of the Crimes Act 1961, of the New Zealand Bill of Rights Act 1990 and of s 18 of the Oaths and Declarations Act 1957;

(b)in hearing the leave to appeal application, was sitting in judgment on my own judgment.

Plaintiff’s submissions

[15]              Mr Steele, on behalf of the plaintiff, firstly makes the point that having regard to the High Court Recusal Guidelines and the Court’s decision in Muir v Commissioner of Inland Revenue,4 the defendants must:

(a)first identify the circumstances that might lead to me deciding the case other than on its merits;

(b)establish a logical connection between those circumstances and the possibility that I may decide the case otherwise than on its merits.

[16]              Mr Steele submits that as to the first enquiry as to whether a Judge is or may be seen to be biased, it is not to be assessed by reference to the views of a particular litigant who has made the allegation of bias and who is endeavouring to influence a result or overturn a decision based on their individual views: they are the least objective observer of all.5 Mr Steele submits that the test is by reference to a fair- minded lay observer, that person is intelligent, views matters objectively, and is reasonably informed about the workings of the courts, and is neither unduly sensitive or suspicious, nor complacent about what may influence the Judge’s decision.6

[17]              Mr Steele submits the defendants are clearly endeavouring to influence the result in this matter on a complete reliance on their personal views and the defendants are patently not fair-minded and are clearly unduly sensitive and suspicious as to what may have influenced my decision.

[18]              As to the second enquiry, the party alleging apparent bias must then articulate a logical connection between the matter complained of the “feared deviation” from impartiality.7 Mr Steele submits that it is not enough merely to establish that a fair- minded lay observer might be concerned about the Judge’s impartiality, rather the applicant must establish a connection between that concern and why it might lead the

4      Above, n 3.

5      Siemer v Attorney-General [2013] NZHC 1111 at [10].

6      Saxmere Co Ltd v The Wool Board Disestablishment Co Ltd [2009] NZSC 72 at [5] and [10].

7      Saxmere at [4], [20], [86] and [93].

Judge to decide the case other than on its merits.8 He submits the articulation of this connection is “not established through a superficial impressionistic reasoning”.9

[19]              Mr Steele submits that there is nothing in the Strike Out Judgment that suggests the bias or ill-will between me and the defendants and it is noteworthy that at [2] of the Strike Out Judgment, among other things, I acknowledge the defendants had raised “strong arguments in favour of work carried out by Mr Nottingham on the property for which he may be entitled to compensation”. Mr Steele submits this indication militates against any “anti-defendants” bias.

[20]              Mr Steele submits that the language I used and the findings I make in the Strike Out Judgment are made in measured respectful language towards the defendants, and this again points away from the general “anti-defendants” bias.

Result

[21]              I am of the view that the defendants’ application that I recuse myself from these proceedings should be dismissed. The allegations by the defendants made against me as grounds for my recusal are without foundation. The Strike Out Judgment simply applied the well settled principles of law applicable to strike out applications, namely that the defendants did not establish that the plaintiff’s claims were untenable.

[22]To address the specific issues raised by the defendants:

(a)the reference to “Warren” was only because of common surnames. It had nothing to do with favouring the plaintiff in any way;10

(b)to the extent the defendants allege that their evidence was a complete defence to the plaintiff’s claims:

(i)firstly, if this is an issue, the defendants can take it on appeal, and has nothing to do with my recusal;

8      Saxmere at [93].

9      Saxmere at [93].

10     See footnote 1 of the Strike Out Judgment.

(ii)secondly, for the reasons set out at [53] of the Strike Out Judgment, there are issues to be tested in respect of the documents put forward by the defendants as part of their defence;

(c)there is no admitted perjury. Warren Beere filed an affidavit correcting a mistake in an earlier affidavit;

(d)the issues around the lodgement of the caveats by the plaintiff are not issues in the Strike Out Judgment and are not relevant to my recusal;

(e)High Court Rules 5.62 and 5.63 are irrelevant to the strike out application. The strike out application proceeds on the assumption that the plaintiff’s pleaded facts are true, unless those facts are entirely speculative and without foundation.11 Any responses to the defendants’ statement of defence, including any responses of the plaintiff to any affirmative defences the defendants allege they have raised, will be dealt with at the next stage of the pleadings when the strike out application has been finally determined;

(f)the alleged propensity the evidence relied on by the defendants in relation to the conduct of the plaintiff’s solicitors was irrelevant to the strike out application and was no basis to declare the plaintiff’s solicitors in contempt of Court;

(g)the Strike Out Judgment was not perverse in any respect. As noted at

[21] of this judgment, the Strike Out Judgment just applied established principles of law relating to strike out applications;

(h)as to the allegations that the Strike Out Judgment addressed issues not in the plaintiff’s proceedings:

11     Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267; Couch v Attorney- General [2008] NZSC 45; [2008] 3 NZLR 725 at [33].

(i)firstly, if this is an issue, it is an issue the defendants can take on appeal and has nothing to do with my recusal;

(ii)secondly, the threshold for a strike out is high, and a Court should consider not only the basis on which the claim is pleaded but also any other bases on which the claim might be pleaded;12

(i)as to the contention that I ignored the defendants’ argument that the plaintiff, as discretionary beneficiary, had no standing to bring the claim:

(i)is, in counsel for the plaintiff’s submission, a misapplication of the law by the defendants; and

(ii)in any event, if it is an issue, it is an issue the defendants can take on appeal, and nothing to do with my recusal;

(j)as to the allegations of theft of documents by parties associated with the plaintiff, to the extent that these allegations can be substantiated, they should be pursued by the defendants in another forum and were not relevant to the strike out application.

Orders

[23]I make the following orders:

(a)The defendants’ application for my recusal from the proceedings is dismissed.

(b)Costs are reserved.

…………………………….. Associate Judge Taylor

12     O’Neill v Bridgeman [2020] NZCA 460 – citing Couch v Attorney-General (above, n 11).