Man O'War Station Ltd v Auckland City Council [2000] NZCA 352; [2001] 1 NZLR 552 (27 November 2000)

Last Updated: 7 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/98

	BETWEEN	MAN O’WAR STATION LIMITED
		First Appellant

	AND	HURUHE STATION LIMITED
		Second Appellant

	AND	AUCKLAND CITY COUNCIL (FORMERLY WAIHEKE COUNTY COUNCIL)
		First Respondent

	AND	THE ATTORNEY-GENERAL
		Second Respondent

Hearing:	9 November 2000
Coram:	Gault J Keith J Tipping J
Appearances:	R J Craddock QC and M A Muir for Appellants A R Galbraith QC and R D C Hindle for First Respondent No appearance for Second Respondent
Judgment:	27 November 2000

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] Following the delivery of the judgment of this Court on 11 April 2000, the unsuccessful appellants applied for an order setting aside or, in the alternative, recalling the judgment.
[2] By its judgment the Court upheld the decision of Anderson J in the High Court that parts of the appellants’ lands on Waiheke Island had been the subject of implied dedication for road by a predecessor in title to the appellants. The Court also allowed a cross-appeal and held that the Judge should have found a further part of the land (the south-west deviation) was also the subject of dedication. This resulted in substantial reduction of the land over which the claim by the appellants in trespass had been upheld. The Court did not, and did not need to, go on to consider the cross-appeal against the decision so far as it rejected an attack on the appellants’ title to the land formed as road on the ground of fraud.
[3] In the amended notice the ground on which it was sought to set aside the judgment was:

One of the members of the Court, the Rt Hon Justice Blanchard, was disqualified from so sitting by reason of his undisclosed acquaintance and association with the first respondent’s principal witness and the resulting appearance of bias.

[4] The grounds for recall of the judgment were that the Court failed to determine two matters. The first was the appellants’ appeal against the award of damages against the Auckland City Council (the Council) for trespass over that part of the land formed as road but not held to have been dedicated for that purpose. The second matter was the Council’s appeal against the finding that the appellants were not to be fixed with Land Transfer Act fraud.
[5] The application was opposed by the Council. The Attorney-General took no part in the hearing on the application.
[6] Prior to the hearing of the application counsel for the appellants advised that the second ground for recall of the judgment would not be pursued. Counsel also raised objection to the intended composition of the Court to hear the application, contending that a new court should be constituted excluding all members of the Court who decided the appeal. Because the application still sought an order recalling the judgment for failure to deal with one matter, because the ground of bias was supported with reference to recollections of what was said in the course of the appeal hearing, and because there clearly would be argument on the significance of the evidence of the witness in question, counsel were advised that the Court would comprise those members who sat on the appeal excluding Blanchard J, and Henry J who had retired.
[7] Counsel renewed the objection to the composition of the Court at the commencement of the hearing, but advanced no further grounds of objection beyond those contained in counsel’s memorandum dated 31 October 2000. We were not convinced that any of the reasons there advanced required the earlier decision to be revisited nor necessitated disqualification of any of the members of the Court sitting on the matter. We add only that we reject the suggestion of “the unarticulated judicial reluctance to enquire into even the possibility that another Judge has acted improperly” which in any event would be no different for other members of the Court. The hearing proceeded.
[8] Counsel then informed the Court that an arrangement had been arrived at to avoid argument at the present time on the remaining ground for recall. The case is destined for further appeal to the Privy Council. We have before us an application for conditional leave to appeal, duly consented to, which we are asked to take up in the event that the application to set aside the judgment is dismissed.
[9] The agreed arrangement, subject to acceptance by the Court, is that consideration of the appeal against the basis on which the damages for trespass were awarded be deferred until after the appeal to the Privy Council. If the appellants succeed, this Court will then be asked to deal with the points of principle involved in a supplementary judgment without the need for further hearing. Any further quantification would then go back to the High Court. If the appellants succeed only in respect of the south-west deviation land, or do not succeed with their appeal the matter of damages will not be pursued. The Court accepts that proposal.
[10] We turn to the contention that Blanchard J was disqualified for apparent bias. A witness at the trial was a Mr Ian Grierson, a surveyor, who had been responsible for the survey work undertaken to define the proposed road through the land of the predecessor in title to the appellants, Mr Hooks. It was said that the relationship between Blanchard J and Mr Ian Grierson is such as to give rise to the appearance of bias in the Judge sitting on the appeal.
[11] Mr Craddock QC in his argument made much of the importance of the witness. Of course, this Court did not see or hear the witnesses and had the benefit of the trial Judge’s findings of fact. The appellants did seek to have facts revisited to some extent, and in that regard Mr Ian Grierson’s evidence was not only of technical survey work but also of events and the roles of key people involved at the relevant times. For the purposes of argument we accept he was an important witness though we would not go so far as the appellants who based their application on the fact that Mr Grierson was the council’s principal witness.
[12] There was no substantial disagreement between the parties on the applicable legal principles. They are those set out in the speech of Lord Goff in R v Gough [1993] UKHL 1; [1993] AC 646 and accepted by this Court in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142.
[13] In Gough Lord Goff, with whom the other members of the House of Lords agreed, said: (p670)

In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias.

...

Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him.

[14] Those general principles were followed and applied with helpful guidance as to the appropriate approach in the judgment of the Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] 2 WLR 870, [2000] 1 All ER 65. Counsel referred us to passages in the judgment of that Court; Mr Craddock emphasising passages primarily directed to considerations of recusal in advance and Mr Galbraith emphasising the more direct approach when apparent bias is considered after the event. Using the references to the All England Reports, we note first the comment (p75) that the reviewing court may receive a written statement from a Judge against whom an allegation of apparent bias is made. We did that in this case. After the filing of affidavits was complete those affidavits were referred to Blanchard J and he made a brief written statement to the Court which was made available to counsel.
[15] The Locabail judgment also dealt with the position of solicitors who sit as judges which occurs in England, and commented upon their position as distinguished from that of barristers (p75).
[16] The Court approved observations of the constitutional court of South Africa in President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 9; 1999 (4) SA 147, 177:

The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

[17] The Court went on to deal with factors to be taken into account in the following terms (p77):

It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any members of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him.

...

By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons’ evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be. (emphasis added)

[18] Mr Galbraith argued that when an issue of apparent bias is considered after the event the result of these authorities is to indicate that the approach should be to ascertain on the basis of all the facts available whether, in fact, there was bias. We think that proposition is supported by the authorities only in the negative. Where after the event it is established that there could not have been bias then it is unnecessary to dwell on the appearance. Two of the five cases dealt with in the Locabail judgment were determined on that basis. Mr Galbraith did accept that in appropriate circumstances the inference of a danger of bias can be drawn from the circumstances and perceptions.
[19] Armed with that guidance, the issue before us is whether we are persuaded that there is a real danger that the Judge unfairly regarded the case of the appellant with disfavour when he participated as a member of the Court on the appeal.
[20] The direct relationship between the Judge and the witness could not seriously be advanced as so close as to raise any issue of apparent bias. Blanchard J, before his appointment to the High Court bench in 1992, practised as a member of one of the small number of large firms of barristers and solicitors in Auckland, Simpson Grierson. He had been a partner in that firm, or the firm of Grierson Jackson & Partners, one of the predecessors to Simpson Grierson, since 1968 and was an employee before that from 1962. Mr Ian Grierson had practised from about 1955 as a registered surveyor and civil engineer in a partnership which subsequently incorporated into a company Harrison Grierson Consultants Ltd.
[21] The firms of Grierson Jackson & Partners, later Grierson Bornholdt & Partners, and Simpson Grierson have acted for Harrison Grierson. Simpson Grierson’s records indicate that that firm acted personally for Mr Ian Grierson in the preparation of a will and in respect of a family trust. Those records do not indicate that the Judge ever acted for Mr Ian Grierson personally. The Judge did have an involvement in the late 1970’s or early 1980’s advising the partners of Harrison Grierson in relation to a partnership agreement. In 1979 he was one of two trustees appointed in connection with a retirement arrangement for those partners, but the scheme was discontinued in about 1984 when the firm incorporated. That involvement did not include any direct contact with Mr Ian Grierson.
[22] The evidence is that although they were acquainted because of a close link each had with Mr Max Grierson, there was no personal friendship and has been no social contact other than possible social functions of the respective firms. Both agree their paths have seldom crossed and they have not spoken at all since the Judge was appointed in 1992.
[23] But the appearance of bias is said to arise because of Mr Max Grierson. He was Mr Ian Grierson’s father. He was also a practising solicitor who was widely known in Auckland. He had a long and close association with the Judge. Before the Second World War Mr Max Grierson and the Judge’s father practised law in Pukekohe. The Judge’s father was killed in the War. Mr Max Grierson took some interest in, and was supportive of, the career of his friend’s son who eventually joined the firm in which he was a partner. They were partners until 1978. Thereafter Mr Max Grierson was a consultant to the firm and later to Simpson Grierson until his death in 1994. The Judge confirms that he had a warm and close relationship with Mr Max Grierson and regarded him as his mentor in the law.
[24] We were not invited to infer that the Judge’s relationship with Mr Max Grierson would give rise to the perception of predisposition towards his son as a witness. The argument was that it was the relationship between the Judge and the witness that did that. The association with the witness’s father was pointed to as a factor indicating the length and closeness of the association between Mr Ian Grierson and the Judge. Mr Ian Grierson said however:

I did not have any particular contact or friendship with Justice Blanchard as a child. The reality is that we had very little to do with each other. Justice Blanchard was brought up by his mother, but not in Pukekohe. It was not as if Justice Blanchard was a regular visitor in our family home. We would see him on occasion and of course I knew who he was. However as far as I can recall we never had anything much to do with each other. It is not as if we spent holidays together or anything of that sort.

[25] His brother, Mr Bruce Grierson (who retired from the solicitors’ firm in 1979), put it this way:

My brother and His Honour were certainly well known to each other through both family and professional connections. While they were on friendly terms, I do not think they could be described as personal friends. So far as I am aware, social contact between them was confined to any social functions of our respective firms.

[26] The statement that “they were on friendly terms” is to be taken in light of the contacts between them and the evidence of lack of contact for the last eight years which we have no hesitation in accepting. Accordingly the common close affiliation to Mr Max Grierson did not give rise to any close association. The claim that it did seems to suffer from the fallacy of the undistributed middle.
[27] For the appellants it was argued that the appearance of bias arising from the acquaintanceship is exacerbated by two further matters. The first arises from the comment by way of disclosure made by Blanchard J at the start of the hearing of the appeal. According to the affidavit of Mr Joyce, solicitor for the appellants:

At the commencement of the hearing on 8 March 2000 the Rt Hon Justice Blanchard informed counsel for the appellants and respondents that there was a matter which he regarded as appropriately disclosed to them, namely that he had been a partner in the Auckland law firm of Simpson Grierson at a time when it was instructed by the first respondent, Auckland City Council (ACC), in relation to the matter under appeal. He went on to state that he had not at any stage been personally involved in the litigation although he was aware that it was being handled by the firm. In those circumstances senior counsel for the appellants Mr Craddock QC confirmed that the appellants had no objection to His Honour forming part of the Court’s coram. The fact that His Honour was formerly a partner in Simpson Grierson was of course already known to the appellants and was not a matter which of itself concerned them.

[28] Junior counsel for the appellants said this conformed with her recollection. The Judge in his statement disagreed to a degree. He said:

What is said concerning my disclosure in Court at the commencement of the hearing is not accurate. I was careful to say that I had not been aware of the case when I was at Simpson Grierson. I had realised from the dates alone when I read the papers for the hearing that Simpson Grierson must have been instructed when I was a partner in the firm, but I did not myself know anything of it.

[29] The Judge’s version accords with the recollection of members of the Court and with his advice to the presiding judge before the Court sat on the appeal. Nothing turns on the difference however. The appellants were content to agree to the Judge sitting even on the understanding of their solicitor and counsel. In argument, however, the matter was relied on as a basis for the claim that the disclosure made should be seen as increasing the appearance of bias when taken with the failure to disclose the further matters now raised. Counsel’s submission was:

Disclosure by His Honour of a significantly less important association inevitably raises questions in the minds of an impartial observer (albeit one without the “unarticulated judicial reluctance to inquire into even the possibility that another judge had acted improperly”) about why His Honour’s acquaintance with Mr Grierson, close friendship with the person whom he knew to be Mr Grierson’s father, and the professional associations between His Honour’s former firm and Harrison Grierson (if not his Honour and Mr Grierson personally) were not similarly disclosed. Partial disclosure is, it is submitted, inappropriate in itself but, worse, it can add to the appearance of bias by suggesting either defensiveness or perhaps even an attempt to obfuscate on the part of the judicial officer concerned. Even where the decision-maker has in fact been scrupulously impartial, if there is a basis on which informed and reasonable members of the public might reasonably entertain such concerns, then it is submitted the Court should intervene.

Bearing in mind the test is the perception of a fully informed court personifying the reasonable observer, this argument plainly is an invitation to reject the Judge’s explanation that:

It did not occur to me that the relationship between Mr Ian Grierson and Mr Max Grierson, which I thought was very well known in Auckland professional circles, was not known to those advising the appellant.

Further, it appears to be an argument that the Court should find concealment of actual bias though Mr Craddock disavowed that.

[30] We are content to accept the Judge’s explanation and find nothing in the non-disclosure adding to the strength of the apparent bias argument.
[31] The second matter relied upon was a statement made by the Judge in the course of the argument on the appeal in which he referred to Mr Ian Grierson as a “meticulous surveyor”. This is referred to by both the solicitor and junior counsel for the appellant. Neither provides the context and Mr Craddock was unable to assist in the course of his argument. Counsel who represented the Council on the appeal was able to offer assistance on the context. They said:

Counsel for the Council recall a reference to a ‘meticulous surveyor’. They cannot recall whether the statement was that Mr Grierson ‘was’ or ‘might have been’ a meticulous surveyor. Their recollection (allowing for the lapse in time) is that the comment was made in the context of the delay which took place – their impression was that the remark was ironic.

[32] That stimulated the recall of one member of the Court who confirms the context. The other two members have no note or recollection of the remark which is not surprising if the context was as suggested. In any event, there was no issue in the case concerning the accuracy or precision of the survey. We therefore do not regard the comment as significantly increasing the danger or possibility that the Judge was biased against the appellants or in favour of the respondents because of his past association with the witness.
[33] The submission is of appearance of bias by a Judge of some eight years standing. He participated in the hearing of the appeal in a civil case on a dispute between landowners and a local authority. He had occasional association before appointment with a surveyor witness essentially in unrelated business circumstances. Even taking full account of the relationship both Judge and witness had with Mr Max Grierson we do not consider this gives rise to concern for a real danger or possibility of bias. The fact of a solicitor-client relationship which terminated eight years earlier does not add to that. To take any other view would be unrealistic in the New Zealand situation; even in Auckland. Senior legal practitioners with busy commercial and conveyancing practices must come into contact and establish business associations with a considerable proportion of the professional practitioners in related fields such as surveying and civil engineering. The proposition that because of such an association they should be regarded as in danger of failure to carry out judicial functions impartially eight years after retiring from practice is unreal. For the reasons we have given the additional factors relied on for the appellants in this case do not strengthen the claim.
[34] The application to set aside the judgment is dismissed.
[35] That leaves to be dealt with the application for conditional leave to appeal to the Privy Council. As indicated, there is consent from the City Council. The Attorney-General abides the decision of the Court. Accordingly, conditional leave is granted on the usual terms, that security for costs in the sum of $2,000 be paid within three months and, within the same time, the record is to be prepared for dispatch to London.
[36] The first respondent is entitled to costs on the present application which we fix at $3,500 together with reasonable disbursements including travel and accommodation expenses of counsel approved, if necessary, by the Registrar.

Solicitors
Clendon Feeney, Auckland. for Appellants
Simpson Grierson, Auckland, for First Respondent
Crown Law Office, Wellington, for Second Respondent