P v Q [2018] NZHC 2647 (11 October 2018)

Last Updated: 24 October 2018

THIS JUDGMENT WAS RECALLED FOR ANONYMISATION AND THEN REISSUED

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-412-000077 [2018] NZHC 2647

BETWEEN	P Appellant
AND	Q Respondent

Hearing:	11 October 2018
Appearances:	L A Andersen for Appellant No Appearance for Respondent A J Logan as Counsel to Assist the Court
Judgment:	11 October 2018
Reissued:	15 October 2018

ORAL JUDGMENT OF GENDALL J

[1] The appellant, Ms P, has applied in the Dunedin Family Court for a protection order against the respondent, Mr Q. Judge A has been rostered to hear the application. Ms P filed a memorandum seeking the Judge recuse himself because he knew her socially and professionally. Judge A refused, considering there was no valid basis for his recusal. The appellant appeals that decision.

[2] Mr Andersen appeared before me for Ms P today. There was no appearance for Mr Q. Mr Logan appeared as counsel to assist and I thank him for the detailed submissions he has provided to assist the Court here.

P v Q [2018] NZHC 2647 [11 October 2018]

Background

[3] Turning now to the background in this matter, Ms P is a litigation lawyer practising in Dunedin. She has appeared before Judge A in both the Family and District Courts. Her daughter was friends with Judge A’s daughter so she has interacted to some extent with Judge A as a result. Ms P also states that she has a relationship with Judge A’s wife which has involved:

(a) Consistent contact during drop off and pick up of their respective children at a local school;

(b) Socialising at the appellant’s house when Mrs A was collecting her daughter; and

(c) Regular coffee dates with the appellant and other mothers.

[4] Ms P maintains that she shared details about her separation from the respondent with Mrs A.

[5] Moreover, Ms P has noted that an alleged domestic violence case such as this involves personal information and she would be uncomfortable with this being heard by someone she knows socially.

[6] Mr Q has indicated that he has no objection to Judge A hearing the matter.

District Court decision

[7] Turning now to the District Court decision, the Judge made an in chambers decision refusing the application to recuse himself. The Judge noted the principles set out in the District Court Recusal Guidelines and the relevant case law.¹

[8] The Judge considered that he, and his wife, knew Ms P socially only in the remotest sense. He stated that they only had a polite cordial relationship in the context

¹ The key cases being Muir v Commissioner of Inland Revenue [2007] NZCA 334 (CA); and

Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1) [2009] NZSC 72.

of the school environment. He said they never shared a meal or met in a café. Judge A noted that he had no knowledge of any conversations Ms P had had with his wife. If they had discussed any sensitive information, he said that his wife would have never passed it on to him.

[9] The Judge acknowledged that Ms P may feel uncomfortable with her intimate details being heard by someone she believes she knows socially. However, he considered that this was not sufficient to be the standard of there being bias. He considered that Ms P was not in a different category to anyone else who appeared before him.

[10] The Judge also considered the matter would be entirely different if he was still a resident Judge in Dunedin. It would be wrong to have counsel appearing before a Judge and have credibility findings made of them, and then later have to regularly appear before the same Judge as counsel. However, as he was no longer a resident Judge in Dunedin, sitting there only rarely, this issue, Judge A said, did not arise.

[11] The Judge noted finally that Mr Q did not object to him presiding.

[12] The Judge concluded that there was no factual basis to lead to a reasonable conclusion that he may not be impartial. He therefore declined to recuse himself.

Ms P’s appeal

Ms P’s submissions

[13] Turning now to Ms P’s submissions on this appeal, Mr Andersen, her counsel, notes that Judge A has had an opportunity to assess Ms P as a lawyer and his assessment of her evidence could be affected by a positive or negative view of her previous actions. Any adverse findings he makes against her will be a barrier, it is said, to her acting as an advocate before him in the future. Mr Andersen submits that her appearance as a victim is incompatible with her appearance as counsel.

[14] Mr Andersen goes on to maintain that it is concerning that Judge A made what he says are adverse findings against Ms P in his decision, giving rise to a reasonable
apprehension that he is not impartial. The Judge dismissed Ms P’s factual claims about the nature of her relationship with him and his wife. Mr Andersen particularly notes that the Judge stated he had never shared a meal with Ms P, something she never asserted.

[15] Ms P also notes in her affidavit that she had dealings with Judge A as president of the Otago District Law Society and organised his bar dinner when he left Dunedin.

[16] Mr Andersen submits that the fact that Mr Q does not object does not change the apprehension an impartial observer would have, which would be that there was a reasonable risk of bias here. He argues that the Judge was wrong to view Mr Q’s acceptance as legitimising his hearing of the proceeding.

Mr Andersen goes on to argue that no inaccuracy could be identified in Ms P’s affidavit, and therefore there was no basis for Judge A to dismiss her application that he recuse himself.

Submissions from counsel to assist

[17] Turning now to submissions from counsel to assist, Mr Logan here maintained that none of the matters identified by Ms P justify Judge A’s recusal. He argues that their professional relationship is not sufficient, particularly now that Judge A is no longer a resident Judge in Dunedin. He also submits that the social relationship outlined before the Court is too distant for it to justify recusal. While he notes Ms P’s discomfort, he emphasises that the test is objective.

[18] Mr Logan accepts that Mr Q’s failure to object is immaterial.

[19] He goes on to argue that there is no reason to doubt Judge A’s assurance here that any conversations Ms P had with his wife were not passed on to him. Therefore, they could not improperly influence his determination of the proceedings on its merits.

[20] Mr Logan submits that the focus of this appeal should be on whether the Judge’s findings of credibility in his recusal decision are such that they create one of those rare situations where he should not hear the substantive case. Mr Logan argues
that the Judge’s robust rejection of Ms P’s claimed relationship is understandable in the circumstances. Although Mr Logan, at para [48] of his submissions in this case, does state that the comments made by the Judge in his recusal decision do reflect adversely on Ms P’s reliability or credibility, he goes on to argue, however, that they must be seen in context. They are not extreme and unbalanced and they do not indicate Judge A will not bring an open mind to the substantive proceedings.

[21] Therefore, Mr Logan submits that Judge A was correct to refuse to recuse himself.

Law

[22] Turning now to the law in this matter, the District Court Recusal Guidelines state that a Judge is disqualified from sitting if:

... in the circumstances there is a real possibility that in the eyes of a fair- minded and fully informed observer the Judge might not be impartial in reaching a decision in the case.

[23] The inquiry is a two-step objective test into:

(a) The circumstances relevant to the possible need for recusal because of apparent bias; and

(b) Whether those circumstances lead to a reasonable apprehension the Judge may not be impartial.

[24] Apparent bias arises when:²

... a decision-maker has some personal or professional relationship with a party or witness, or a prejudice against or a preference towards a particular party or result, or a predisposition leading to a predetermination of the issues.

[25] This test is a relatively robust one. The fact that a Judge has made adverse comments against someone, even as to their credibility, will not ordinarily suffice to

² R v Gan [2016] NZHC 2031 at [8].

warrant recusal. Rather, the remarks must show that that the Judge does not have an open mind.³

[26] The observer in question is presumed to be intelligent, objective, reasonably informed about the workings of the judicial system and not unduly suspicious.⁴ Moreover, he or she is taken to understand that a Judge is expected to be independent in decision-making.⁵

[27] An objective observer would also note the judicial oath to independently and impartially decide cases on the basis of the evidence presented in Court. Furthermore, he or she would understand that Judges are accustomed to putting aside extraneous matters.⁶

[28] The New Zealand courts have adopted the English concept of the precautionary principle.⁷ The English Court of Appeal has held:⁸

Where the hearing has not yet begun, there is also scope for the sensible application of the precautionary principle. If, as here, the court has to predict what might happen if the hearing goes ahead before the judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry.

[29] In another case often referred to in New Zealand decisions concerning recusal issues, the English Court of Appeal held:⁹

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, for any other reason, there were real grounds for denoting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him...In most cases, we think, the answer, one way or another, will be obvious. But if in any case there is real ground for doubt, the doubt should be resolved in favour of recusal. We

³ Muir v Commissioner of Inland Revenue [2007] NZCA 334; [2007] 3 NZLR 495 (CA) at [103].

4. Stuart-Menteath v Registrar of Private Investigators and Security Guards HC Dunedin CIV-2010- 412-000306, 5 November 2010 at [28].

⁵ Stuart-Menteath v Registrar of Private Investigators and Security Guards, above n 4, at [29].

⁶ Siemer v Heron [Recusal] [2011] NZSC 116; [2012] 1 NZLR 293 at [23].

⁷ For example, R v Sullivan [2014] NZHC 519.

⁸ AWG Group Ltd v Morrison [2006] EWCA Civ 6, [2006] 1 All ER 967 at 9.

⁹ Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451, [2000] 1 All ER 65 (CA) at [25].

repeat: every application must be decided on the facts and circumstances of the individual case.

Discussion

[30] Turning now to my analysis in this matter, this case in the Family Court involves what are generally difficult and sensitive allegations of domestic violence. Factual matters and issues of credibility are critical in hearings of this kind. Impressions of impartiality are particularly important.

[31] I accept the Judge’s assessment here that his social interaction with Ms P was limited. However, there has been some interaction. Ms P has had personal conversations, she says, of a relevant personal and intimate nature here with Mrs A. Although Judge A has said that his wife has not shared these conversations with him, which I fully accept, this might still look suspicious to a reasonable observer. Given that the credibility of Ms P is significant in the Judge’s determination of her application, more caution than normal is needed here. The issue is whether there is a reasonable appearance of bias, and I think that is met.

[32] I do not accept Mr Logan’s submission that Ms P’s discomfort about sharing personal and intimate information would be the same with another visiting Judge. She clearly has more of a social and professional connection to Judge A than other judges who have not sat in Dunedin.

[33] Although this is a reasonably finely-balanced matter, in the circumstances here, I conclude that there is a real possibility that, in the eyes of a fair-minded and fully informed observer, the Judge might not be seen to be impartial in reaching a decision in this case. Unlike the conclusion reached by Judge A as to his previous interactions with Ms P, I am of the view that these interactions, coupled with her past professional contacts with him as a lawyer, place her in a different category than others who appear before him as litigants in this difficult and highly charged area of alleged domestic violence.

[34] Another factor that gives some weight to my conclusion is that Judge A has not yet heard anything in relation to this matter. It would be relatively straight-forward
for him to be replaced with another judge, although I acknowledge this may be more inconvenient now because the hearing in the Family Court is set down for next week. I think that this is a case where the precautionary principle should be applied. As the English Court of Appeal has noted, if there is a case of doubt, it is better to err on the side of caution and resolve the doubt in favour of recusal.

[35] As I see the position, and again I repeat, on a reasonably fine balance, the dual factors of the social and professional relationship, albeit limited, and the findings made by the Judge against Ms P’s factual claims about the nature of her relationship with him and his wife, mean there may well be here a reasonable apprehension by an observer that the Judge would not be impartial, even though that observer would recognise the Judge’s duty and practice in putting aside extraneous material.

Conclusion

[36] For all these reasons, the present appeal succeeds. I consider that Judge A should be recused from this case and I direct accordingly.



...................................................

Gendall J

Solicitors:

Leonard Anderson, Barrister, Dunedin Medlicotts, Dunedin

Ross Dowling Marquet Griffin, Dunedin