BODY CORPORATE 81012 & ORS v MEMELINK & ANOR (RECUSAL APPLICATION) [2023] NZHC 835

BODY CORPORATE 81012 & ORS v MEMELINK & ANOR (RECUSAL APPLICATION) [2023] NZHC 835[19 April 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-419[2023] NZHC 835BETWEEN BODY CORPORATE 81012, 68792 AND378945PlaintiffAND HARRY MEMELINK ANDCISCA JOHNETTE FORSTERDefendantsOn the papers:Counsel: H Memelink in personJudgment: 19 April 2023JUDGMENT OF CHURCHMAN J[Recusal Application]Introduction[1] The applicant, Mr Memelink, has applied for an order that I be recused frompresiding over proceedings involving himself as well as any proceedings involving thefollowing additional parties:(a) Ms Cisca Johnette Forster;(b) Mr Roy William Bassett-Burr;(c) The Link Trust No 1 (in receivership);(d) Lynx Trustees Ltd (in liquidation);(e) Cudby and Meade Ltd (in liquidation);(f) Link Technology 2000 Ltd (in liquidation); and(g) R Cameron and Shortts Engineering & Plumbing Supplies Ltd(in liquidation).[2] The application is not in respect of any particular proceedings currentlyunderway but rather any potential proceedings that he, or the persons or entities listedin paragraph [1] above, might be involved in in the future.Why does Mr Memelink want me to recuse myself?[3] Mr Memelink alleges that I am biased against him and therefore not impartial.He also complains that I bully him or his lawyer at Court and that I am neithercompetent nor diligent. He further claims that what he refers to as my dismissal of hisand his counsel's pleadings has been unwarranted. He wants Grice J to be allocatedto preside over his future cases involving him and his associates listed above.[4] In support of his application, he has filed an affidavit of 28 March 2023. Thetenor of the affidavit is that I treat him differently to other Judges and am biased againsthim and anyone associated with him. He suggests no reason why that should be so.He makes many sweeping allegations, most of which he provides little detail of.[5] To the extent that he provides any detail in support of his allegations he focuseson three groups of cases: 2016 proceedings (CIV-2016-485-782) between HarbourCity Construction 2012 Ltd and Link Technology 2000 Ltd; 2019 proceedings(CIV-2019-485-315) between Mr Haines and himself, which also involved his brotherin law Mr Bassett-Burr; and proceedings heard in 2022 relating to the appointment ofreceivers of the Link Trust No 1.1 It is therefore necessary to begin by briefly settingout the facts of these cases.1 Body Corporate 81012 v Memelink [2022] NZHC 1244 [31 May 2022 decision]; and BodyCorporate 81012 v Memelink [2022] NZHC 3307.The 2016 proceedings[6] Mr Memelink makes some very specific claims in relation to the 2016proceedings. He asserts that his then counsel, Mr Nicholls, had "made some mistakes"and that I, "in no uncertain terms, remonstrated [sic] him for his admission". Healleges that I treated Mr Nicholls harshly.[7] These allegations are completely fictitious.[8] Mr Memelink was involved in three related hearings involving LinkTechnology 2000 Ltd. Mr Nicholls represented him in the first two of thoseproceedings, Mr Haines in the third. They were heard in 2016, 2017 and 2018respectively. The first was heard in December of 2016. Smith AJ was the presidingjudge. He gave judgment against Mr Memelink's company.2[9] That led to a further hearing in 2017 to quantify the damages Mr Memelink'scompany had to pay. That was heard by Venning J in October 2017. He gave judgmentagainst the company the same month.3[10] The third related to a counterclaim by Mr Memelink's company. It was heardand the counterclaim dismissed in April 2018.4 The presiding Judge was Collins J.[11] As I was not the presiding Judge in either of the two cases where Mr Nichollsacted for Mr Memelink's company (or, indeed, any other case involving Mr Nichollsand Mr Memelink or his companies), I could not have treated Mr Nicholls in themanner said by Mr Memelink to be evidence of bias.The 2019 proceedings[12] These proceedings relate to some statutory demands that had been improperlyserved on a Mr Haines and a costs award I made against a non-party (Mr Memelink'sbrother-in-law, Mr Bassett-Burr) who had actually served the invalid demands.52 Harbour City Construction 2012 Ltd v Link Technology 2000 Ltd [2017] NZHC 451.3 Harbour City Construction 2012 Ltd v Link Technology 2000 Ltd [2017] NZHC 2480.4 Harbour City Construction 2012 Ltd v Link Technology 2000 Ltd [2018] NZHC 686.5 Haines v Memelink [2019] NZHC 2169.Mr Memelink appealed the decision to the Court of Appeal, which substitutedMr Bassett-Burr as the appellant and found that Mr Bassett-Burr had not been notifiedof the intention to seek costs against him in the appropriate manner.6 Mr Hainesappealed that decision to the Supreme Court, which, in its leave decision, noted therewas an argument as to whether the service had in fact been achieved, but concludedthat the threshold for granting leave had not been met.7[13] The application for non-party costs was subsequently validly served onMr Bassett-Burr and, after a defended hearing, I awarded costs against him.8Mr Bassett-Burr sought leave to appeal that decision to the Court of Appeal. This wasdeclined, on the basis of delay on the part of Mr Bassett-Burr and the fact the issueshad already been determined.9[14] The comments in Mr Memelink's affidavit about this series of cases areessentially factual allegations that have been advanced by Mr Memelink in the varioushearings before the different courts and are dealt with in the decisions in those cases.Mr Memelink has exercised his rights of appeal, and, in respect of the factual mattershe referred to, that is the end of the matter.[15] The one new allegation that has not already been ventilated before the Courtsis that I failed to allow Mr Memelink to speak for his "full allotted time" and "shuthim down" when he "started discussing the lawyers Code of Conduct". Mr Memelinkhas, on a number of occasions before me, represented himself or his interests. He notinfrequently becomes fixated about issues that are irrelevant or repeats issues that hehas already fully addressed. This wastes the Court's time. He clearly has a deeppersonal animosity towards Mr Haines and takes every opportunity to disparageMr Haines, irrespective of whether his comments about Mr Haines' character have anyrelevance to the issues before the Court. This also wastes the Court's time. I have,from time to time, had cause to require Mr Memelink to limit his comments to issuesthat are relevant to the matters the Court has to decide in the case before it. That isnot evidence of bias.6 Bassett-Burr v BPE Trustees (No 1) Ltd [2020] NZCA 457.7 Haines v Memelink [2021] NZSC 14 at [14].8 Haines v Memelink [2022] NZHC 2966.9 Haines v Memelink [2022] NZHC 3402.The 2022 proceedings[16] Three different sets of proceedings were heard at the same time:Body Corporate 81012 v Memelink (CIV-2021-485-419) (the receivershipproceeding); Lynx Trustees Ltd (in liq) v Memelink (CIV-2020-485-374) (theliquidation proceedings); and Official Assignee v Memelink (CIV-2020-485-462) (thebankruptcy proceeding). As is often the case with hearings involving Mr Memelink,his lawyer attempted to relitigate issues that had been resolved in other cases or ranmeritless arguments.[17] Mr Memelink and/or his interests were unsuccessful in each of theproceedings. The most significant of the proceedings was the appointment of receiversto the Link Trust (No 1).10 Mr Memelink has unsuccessfully attempted to stay theimplementation of that decision.11 He continues to attempt to pursue appeal rights.12[18] Mr Memelink's specific complaint about this decision is as to the openingwording of the decision, which said:[1] This decision is yet another chapter in the ongoing saga of litigationinvolving Harry Memelink, the Link Trust (No 1) (the Trust), Lynx TrusteesLimited ( in liq) (Lynx), and others with whom he and those entities interact[19] He alleges that this set a "negative tone" and infers that this is evidence of bias.I do not accept that. The statement is factually correct. Mr Memelink's argumentativenature and track record in litigating many baseless claims is well-documented. Indeed,the decision itself sets out verbatim a number of comments by other Judges in earlierrelated litigation as to Mr Memelink's proclivity to engage in meritless litigation.Those comments speak for themselves. Far from being evidence of bias, the firstparagraph in the decision merely records the self-evident.[20] The balance of the matters raised by Mr Memelink are matters going to thereasoning in the decision. They are matters that, so far, have not persuaded the Court10 31 May 2022 decision, above n 1.11 Memelink v Body Corporate 81012 [2022] NZCA 581.12 See Official Assignee v Memelink HC Wellington CIV-2021-485-462, 21 March 2023 (Minute ofGrice J).of Appeal to interfere in the decision. They must be left to run their course by way ofany further appeal Mr Memelink may choose to pursue.[21] It is now appropriate to examine the application of the principles relating torecusal against the facts of these cases.Principles applying to recusal[22] The principles applying to recusal are well-settled.13 The High Court recusalguidelines are developed and published in accordance with s 171(1) of the SeniorCourts Act 2016 to assist Judges to decide if they should recuse themselves from aproceeding. The latest guidelines were published in June 2017.14[23] The first general principle is that a Judge has an obligation to sit on any caseallocated to them unless grounds for recusal exist.15 The High Court recusal guidelinesstate a Judge should recuse themselves "if, in the circumstances, a fair-minded, fullyinformed observer would have a reasonable apprehension that the Judge might notbring an impartial mind to the resolution of the question the Judge is required todecide."16 The standard for recusal is one of "real and not remote possibility", ratherthan probability.17[24] The two-step test for recusal adopted in the High Court recusal guidelines istaken from the Supreme Court's decision in Saxmere Company Ltd v Wool BoardDisestablishment Company Ltd (No 1).18 First, an applicant seeking recusal mustidentify the circumstances that might lead the Judge to decide a case other than on itsmerits. Secondly, the applicant must establish a logical connection between thosecircumstances and the possibility that the Judge may decide the case otherwise thanon its merits.13 See for example Jones v New Zealand Bloodstock Finance and Leasing Ltd [2022] NZHC 93at [13].14 Justice G J Venning (Chief High Court Judge – Te Kaiwhakawā Matua) "High Court recusalguidelines" (12 June 2017) Courts of New Zealand <www.courtsofnz.govt.nz>.15 At 1.1.16 At 1.2.17 At 1.3.18 At 1.4, citing Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1) [2009]NZSC 72, [2010] 1 NZLR 35 at [4]. And see for example M v Attorney-General [2021]NZHC 1842 at [8]–[9].[25] The question of recusal is for the Judge.19 If, after considering all relevantcircumstances, there is doubt about whether there may properly be an appearance ofbias, the High Court recusal guidelines advise it may be prudent for the Judge todecline to sit on a case.20[26] In terms of recusal where a Judge has earlier expressed an opinion, the HighCourt recusal guidelines provide:5. Recusal where opinions earlier expressed5.1 A judge should consider recusing him or herself if the case concernsa matter upon which the judge has made public statements of firm opinion onthe issue before the court.5.2 An expression of opinion in an earlier case or in an earlier stage of aproceeding is not of itself a ground for recusal.[27] In Vector Ltd v H Construction North Island Ltd (in rec and liq), Jagose Jdescribed the test for recusal in the following way:21[15] To paraphrase this Court's recusal guidelines' test,22 the issue is if myconnection with the case makes it a real possibility a fair-minded, fully-informed intelligent lay observer reasonably would apprehend I might notimpartially try it, notwithstanding my oath to "do right to all manner of peopleafter the laws and usages of New Zealand without fear or favour, affection orill will".23Discussion[28] Mr Memelink has requested that I recuse myself from all future proceedingsinvolving him and entities and parties connected to him. Such an application that aJudge should be asked to recuse themselves, not just in a specific case involving theapplicant but from all future cases involving the applicant or people or entitiesconnected with them, is novel.[29] The reason Mr Memelink gives for this request is that since he has a numberof active cases ongoing with the Court, the probability of my presiding over another19 At 1.5.20 At 1.5.5.21 Vector Ltd v H Construction North Island Ltd (in rec and liq) [2020] NZHC 3266.22 High Court recusal guidelines, above n 14, at 1.4; and see also Sisson v Canterbury District LawSociety [2011] NZCA 55, [2011] NZAR 340 at [20]–[22].23 Oaths and Declarations Act 1957, s 18.of his matters again is therefore "highly likely". He suggests that for me to recusemyself from all such future dealings would be best for me and for him.[30] The High Court recusal guidelines do not appear to contemplate a Judgerecusing themselves from all future cases concerning an applicant, let alone anapplication for recusal in advance involving a large group of individuals and entitieswho may be involved in as yet unascertained litigation. The fact that a particularlitigant may have enjoyed very little success in litigation before a Judge is not a groundfor the litigant being able to avoid appearing before that Judge again in any litigationthat the litigant may choose to commence or defend in the future. What is needed isevidence of something that might cause a fair-minded observer to think that the Judgemight not be able to bring an impartial mind to the task involved.[31] As the Supreme Court has commented in Siemer v Heron:24there are strong institutional safeguards within the system. Followingappointment, judges take an oath committing them to independence andimpartiality in their judicial service Judges are also accustomed, on a dailybasis, to putting aside their views of litigants appearing before them that arenot relevant to the issues Their commitment to proper exercise of thejudicial function and their experience in discharging that commitment equipjudges to administer justice impartially, without being distracted byextraneous events such as the reactions of the parties to what they decide ordo. This is so even where there has previously been an expression of strongconcern by the litigant over what the judge has done such as by lodging acomplaint or seeking recusal of the judge.[32] The test is clear that for a Judge to recuse themselves, there must be somelogical connection between the relationship and its capacity to influence the Judge todeviate from the course of deciding a case on its merits alone.25[33] Judges must not recuse themselves "without sufficient cause" and an analysisof apparent bias "is to be assessed on a case-by-case basis." 2624 Siemer v Heron [2012] 1 NZLR 293 (SC).25 High Court recusal guidelines, above n 14, at 2.1.26 Vector Ltd v H Construction North Island Ltd (in rec and liq), above n 21, at [14], citingA (SC 106/2015) v R [2016] NZSC 31 at [16]; and KI Commercial Ltd v Christchurch City Council[2019] NZCA 645 at [10], citing Russell v Taxation Review Authority [2011] NZCA 158, [2011]NZAR 310 at [23], citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA).[34] The application by Mr Memelink is not consistent with an obligation toapproach an application for judicial recusal on the grounds of apparent bias "on a case-by-case basis", to determine whether there is, in the terms of the test, "some logicalconnection" between whatever circumstances there are that are believed might leadthe Judge to decide a case other than on its merits, and the possibility that the Judgemay indeed decide the case otherwise than on its merits.[35] By the very nature of the test for recusal, there can be no such blanketproscription.[36] Secondly, the fact that a Judge has decided against the litigant on previousoccasions is not itself a ground for recusal.27 The High Court recusal guidelinesexplicitly state that a Judge "is not required to recuse [themselves] merely because the judge has previously dealt with the case."28[37] Further reinforcing the faith that is placed in Judges to try cases fairlynotwithstanding previous interactions with a litigant, the High Court recusalguidelines state that even the making of a complaint to the Judicial ConductCommissioner against a Judge "does not of itself serve to disqualify the judge fromhearing cases involving the complainant."29[38] As the Supreme Court has stated, a Judge "should not recuse themselveswithout sufficient cause."30 McGrath J stated in the Saxmere case:31 If a practice were to emerge in New Zealand of judges disqualifyingthemselves without having good reason, litigants may be encouraged to raiseobjections which are based solely on their desire to have their case determinedby a different judge who they think is more likely to decide in their favour.Such a development would soon raise legitimate questions concerning breachof the rights of other parties.27 See Deliu v Johnstone [2021] NZCA 646 at [4].28 High Court recusal guidelines, above n 14, at 1.5.3.29 At 1.5.4, citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337; andAussie Airlines Pty Ltd v Australian Airlines Pty Ltd (1996) 135 ALR 753.30 A (SC 106/2015) v R, above n 26, at [16], citing Stephen Sedby "When should a judge not be ajudge?" [2011] 33 LRB 1 at 9; and Shimon Shetreet and Sophie Turenne in Judges on Trial:The Independence and Accountability of the English Judiciary (2nd ed, Cambridge UniversityPress, Cambridge, 2013) at 214.31 Saxmere, above n 18, at [88] (footnote omitted).[39] A number of the matters raised by Mr Memelink are matters that, if they hadany validity, would be the grounds for a successful appeal. Mr Memelink has almostinvariably exercised his rights of appeal against the decisions he is unhappy with. Ifthere had been any substance to his claims about my competence, diligence orknowledge of the law, they would have resulted in the Court of Appeal upholding hischallenges. The fact that they have not done that is telling.[40] The only case where one of Mr Memelink's associates enjoyed some limitedsuccess on appeal is the one discussed at [12] above.32 Even then, however, theSupreme Court subsequently stated the decision of the Court of Appeal in setting asidethe order I made for costs "turned on a procedural point" and accepted it was "arguablewhether the Court of Appeal was correct in holding that [my decision on that pointwas wrong]".33[41] The reality is that Mr Memelink, being unhappy with the decisions that I havegiven in a number of cases involving him or related parties, and having been unableto overturn those decisions on appeal, has decided to try and ensure that I am not ableto sit on his cases in the future. Essentially, he is trying to "Judge shop" and get apreferred Judge appointed. That is not permissible in our legal system.Conclusion[42] For the above reasons, I dismiss Mr Memelink's application seeking that I berecused from presiding over proceedings involving him and parties related to him.Churchman J32 See Bassett-Burr v BPE Trustees (No 1) Ltd, above n 6, in relation to an order I made for non-party costs.33 Haines v Memelink, above n 7, at [4] and [14].