GREGORY JOHN JONES v STACE HAMMOND LAWYERS [Application for leave to appeal] [2022] NZHC 884

GREGORY JOHN JONES v STACE HAMMOND LAWYERS [Application for leave to appeal] [2022] NZHC884 [29 April 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2021-404-001313CIV 2021-404-001621[2022] NZHC 884UNDER Section 124 of the Districts Courts Act 2016BETWEEN GREGORY JOHN JONESAppellantAND STACE HAMMOND LAWYERSRespondentHearing: 12 April 2022 (by telephone conference)Appearances: Appellant in personG H J Brant for the RespondentJudgment: 29 April 2022JUDGMENT OF VAN BOHEMEN J[Application for leave to appeal]This judgment was delivered by me on 29 April 2022 at 3.30pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Greg Jones, Barrister, AucklandStace Hammond Lawyers, AucklandIntroduction[1] Mr Jones seeks leave to appeal my decision of 27 January 2022 dismissing hisappeal against the decision of the District Court entering summary judgment againsthim in the sum of $14,900.00, plus interest and costs, for fees owing to StaceHammond Lawyers.1 Mr Jones also seeks leave to appeal my decision in thatjudgment dismissing his application to adduce further evidence on appeal. Mr Jonesalso seeks leave to file his notice of appeal out of time.[2] Mr Jones also applied that I should recuse myself from hearing his applicationson the grounds that a fair minded lay observer would conclude that I would not bringan impartial mind to the resolution of his applications.[3] I declined the recusal application in my minute dated 8 April 2022 issued priorto the hearing on 12 April 2022.2 Nonetheless, Mr Jones made submissions at thathearing on why he considered I should recuse myself and why I should give reasonsfor my decision.[4] Stace Hammond opposes all of Mr Jones's applications and says I should notrecuse myself.Recusal[5] Given the vigour with which Mr Jones addressed the recusal question, Iconsider it appropriate to set out why, as stated in my minute of 8 April 2022, I sawno reason to depart from the usual practice that an application for leave to appeal ajudgment is heard by the Judge or Court that issued the judgment in respect of whichleave to appeal is sought, and that I did not accept there was any principled basis uponwhich I should recuse myself from dealing with the applications.1 Jones v Stace Hammond Lawyers [2022] NZHC 47.2 Jones v Stace Hammond Lawyers Auckland HC CIV-2021-404-1313 8 April 2022.Mr Jones's submissions[6] Mr Jones says that my judgment shows that I am biased. He refers to mydescription of the material included in his affidavit of 26 October 2021 as "bizarre."He also points to my referencing a concern expressed by Venning J in a judgment in aseparate proceeding as to Mr Jones's competence and state of mind because of thenature of similar material put forward by Mr Jones in that proceeding. Mr Jones alsosays I paid scant regard to the facts and misread the evidence of Dr Francois-ReneBertin, a specialist in equine internal medicine which Mr Jones sought to put inevidence. Mr Jones says I referred disparagingly to Dr Bertin by describing him as asenior lecturer when, according to Mr Jones, he is an Associate Professor.[7] Mr Jones says my judgment is patently and seriously flawed and constitutes adeliberate attempt to prevent him from his entitlement to litigate against parties.Mr Jones says I had no basis for reaching conclusions in relation to his competenceand state of mind and that my comments are in breach of the Guidelines for JudicialConduct. Mr Jones submits that it was inappropriate for me to decide his applicationfor recusal and says I should have referred that application to another judge fordecision. He refers to a background paper on Judicial Impartiality prepared by theAustralian Law Reform Commission (the Background Paper).3 He says theBackground Paper supports his view that his application for recusal should have beenreferred to another judge for decision and that I should have provided for reasons formy decision not to recuse myself.Analysis[8] The Recusal Guidelines for High Court Judges (the Guidelines) are annexed tothis judgment.[9] The first section of the Guidelines sets out general principles.[10] The first general principle is that a judge has an obligation to sit on any caseallocated to him or her unless grounds for recusal exist. The second general principle3 Australian Law Reform Commission Background Paper J12: Judicial Impartiality – Recusal andSelf-Disqualification March 2021; updated April 2021.is that a judge should recuse him or herself if, in the circumstances, a fair-minded,fully informed observer would have a reasonable apprehension that the judge mightnot bring an impartial mind to the resolution of the question the judge is required todecide. The fifth general principle is that the question of recusal is for the judgehearing the case.[11] The third general principle states that the standard for recusal is one of "realand not remote possibility," rather than probability. The fourth general principle setsout the two-stage test to be applied by the judge. Under that test, the judge mustconsider:(a) what it is that might possibly lead to a reasonable apprehension by afully informed observer that the judge might decide the case other thanon its merits; and(b) whether there is a "logical and sufficient connection" between thosecircumstances and that apprehension.[12] The Guidelines provide guidance as to the circumstances where judges shouldrecuse themselves. They include situations where:(a) a party, lawyer or witness is a close relative or domestic partner of thejudge;(b) the judge served as a legal advisor in respect of the matter in issue whenin practice;(c) the judge or a close relative or member of the judge's household,directly or indirectly has an economic interest in the outcome of theproceedings;(d) the case is to decide a point of law which may affect a judge in his orher personal capacity beyond that of the public generally;(e) the value of a judge's shareholding in a company would be affected bythe outcome of the litigation;(f) the judge has made public statements of firm opinion on the issuebefore the court.[13] Mr Jones does not assert that any of those circumstances arises in the presentcase. I am also satisfied that no such circumstance arises. I have had few personaldealings with Mr Jones in my career and none in the past decade. Until I was assignedthis case, I also had no prior knowledge of Mr Jones's personal circumstances,including the issues he has had with respect to his bloodstock interests. Neither I noranyone in my family has any financial interest in the bloodstock industry. Nor had Ihad any dealings with Stace Hammond.[14] It was for these reasons that I concluded that there was no principled basis onwhich I should recuse myself from dealing with Mr Jones's applications.[15] The Background Paper provides no basis for departing from the approach setout in the Guidelines. It notes that commentators and judges have acknowledged thatthe procedure of judges, in relation to whom bias is alleged, deciding whether to recuseor disqualify themselves may be perceived as "strange" and "awkward."4 As theBackground Paper also notes, however, that is the procedure followed in manycommon law jurisdictions.5 New Zealand is one such jurisdiction, as is confirmed bythe Guidelines.[16] The Background Paper discusses whether other procedures might be adoptedto avoid the inherent tension of judges making decisions on whether they arethemselves biased.6 It notes that there are drawbacks as well as advantages to such aprocedure. These include the risks of parties looking to create delay or engage injudge-shopping, and the increase in time and cost in having to bring in another judgeto decide the application for disqualification.4 At [5].5 At [4].6 [30] – [47].[17] The Background Paper does not make any recommendations as to whether thecurrent procedures in Australia should be changed. It acknowledges that the mostwidely called for reform is to have a different judge involved in the disqualificationdecision. It notes that the implications of such a reform were to be discussed in theCommission's consultation meetings and in a consultation paper that was to beprepared. There is nothing before the Court, and there is nothing apparent on theCommission's website,7 to indicate whether any final recommendations have beenmade to reform Australian law in this area.[18] In summary, the Background Paper is informative and raises important issuesfor consideration. However, it makes no recommendations or decisions. It does notchange the law or judicial practice in Australia, let alone New Zealand. It confirms,however, that in deciding Mr Jones's application, I acted in accordance with theprocedure that is applied in most common law jurisdictions.[19] At the hearing of his applications, Mr Jones acknowledged that he had no issuewith the way I conducted the hearing of his appeal. His allegations of bias and hisapplication for recusal are based only on the substance of the decision he seeks toappeal. In that regard, Mr Jones's allegations and application may raise questions asto whether Mr Jones is looking to create delay or engage in judge-shopping asdiscussed in the Background Paper. It is unnecessary, however, to make findings onthose questions.[20] Mr Jones's overall submission that a fair-minded lay observer would concludefrom the substance of my judgment that I would not bring an impartial mind to theresolution of his applications really goes to the question of whether Mr Jones hasarguable grounds for seeking leave to appeal. I consider that submission, therefore, inthe context of his application for leave to appeal.7 Australian Law Commission <alrc.gov.au>.Application for leave to appeal out of time[21] Mr Jones filed his application for leave to appeal on 10 March 2022, nine daysafter the end of the 20 working day period for the filing of applications for leave toappeal provided for in r 20.3(1) of the High Court Rules 2016.[22] In an affidavit filed with his application, Mr Jones explained that he hadmistakenly sought to file his application for leave directly with the Court of Appeal,even though he had been aware of s 60 of the Senior Courts Act 2016. That sectionprovides that an application for leave to appeal a decision of the High Court on appealfrom the District Court must be made initially to the High Court.8[23] Stace Hammond objects to any extension of time and says it would beprejudiced by any extension because the application for leave is meritless. However,Stace Hammond was aware of Mr Jones's application for leave to appeal my decisionrefusing leave to adduce additional evidence, which was filed within time and whichsignalled Mr Jones's intention to appeal my substantive decision.[24] In these circumstances, I am satisfied that there is no real prejudice to StaceHammond in Mr Jones filing his application for leave to appeal nine days late.Accordingly, I grant leave to Mr Jones to file his notice of appeal out of time.Applications for leave to appeal and for leave to appeal decision declining leaveto adduce additional evidence[25] The grounds stated in Mr Jones's applications for leave to appeal and for leaveto appeal my decision declining leave to adduce additional evidence are largely thesame. For that reason, I consider them together. Mr Jones's submissions alsoaddressed both applications together.8 Senior Courts Act 2016, s 60(2).Relevant considerations[26] As Mr Jones accepts, in Greendrake v District Court of New Zealand, the Courtof Appeal recognised the following considerations as relevant to an application forleave to appeal:9(a) a high threshold exists;(b) the applicant must identify an arguable error of law or fact;(c) the alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general or precedential value;(d) the circumstances must warrant incurring further delay; and(e) the ultimate question is whether the interests of justice are served bygranting leave.The asserted arguable errors[27] Mr Jones asserts that Stace Hammond knew there was a conspiracy againsthim and that Stace Hammond had a conflict of interest with regard to the Te Akau Studand its principal, Mr Ellis. He says Stace Hammond was required to advise him of theconspiracy and to refuse to act for him. He says that the material exhibited to hisadditional affidavit that he sought to put in evidence shows he was subject tocoordinated pressure that amounted to harassment and that, in the absence ofcontradictory evidence from Stace Hammond or anyone else, he was entitled to takethe view that the evidence he adduced should be accepted.[28] The arguable errors that Mr Jones identifies are:(a) I failed to assess at all or adequately the evidence of Dr Bertin;(b) I failed to accept an inference of intentional damage to Mr Jones'sinterests resulting from the treatment of Mr Jones's foal in New South9 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].Wales and the actions of a veterinary clinic in New Zealand andWentworth Grange in relation to another valuable horse;(c) I failed to acknowledge "the existence and/or materiality of the facts"referred to in an exhibit to Mr Jones's additional affidavit in the absenceof contrary evidence;(d) I reached conclusions as to Mr Jones's competence and state of mind inreliance on a judgment of Venning J and in the absence of medicalevidence and, in this respect, I breached the Guidelines for JudicialConduct;(e) I failed to understand the potential connection between the conspiraciesto which Mr Jones refers and their impact on his relationship with StaceHammond;(f) I failed to place adequate emphasis on the fiduciary obligations of StaceHammond; and(g) I over-emphasised Mr Jones's experience as a lawyer when he wasclearly impacted by the litigation and its surrounding circumstances.Analysis[29] Mr Jones's submission that, in the absence of contradictory evidence fromStace Hammond or anyone else, he was entitled to take the view that the evidence headduced regarding the existence of a conspiracy and a conflict of interest on the partof Stace Hammond should be accepted, misses the essential point of my decision. TheCourt's findings, not Mr Jones's view, determine the outcome of his appeal against theDistrict Court's decision.[30] As stated at [69] of my judgment of 29 January 2022, the Court of Appeal hasheld, in Krukziener v Hanover Finance Ltd, that a Court need not accept uncriticallyevidence that is inherently lacking in credibility or is inherently improbable.10 I foundthat the evidence Mr Jones had advanced in support of the alleged conflict of interestwas inherently lacking in credibility and was inherently improbable. Given thatfinding, I do not consider it reasonably arguable that I should have admitted andaccepted the evidence that Mr Jones had sought to adduce in support of the allegedconspiracy and conflict of interest.Dr Bertin's evidence[31] The first two arguable errors asserted by Mr Jones relate to my considerationof the affidavits of Dr Bertin that had been sworn in a proceeding brought againstMr Jones by the Scone Equine Hospital in New South Wales, Australia for non-payment of fees for treatment by that Hospital of a foal owned by Mr Jones and whichMr Jones wished to put in evidence in this proceeding.[32] As a preliminary comment, I do not accept that I was disparaging towardsDr Bertin or that I failed to assess his evidence. At paragraph 1 of his affidavit swornon 2 June 2020, Dr Bertin stated that he was "a senior lecturer in Equine InternalMedicine at The University of Queensland." No-where in that affidavit or in hissubsequent affidavit did Dr Bertin describe himself as an associate professor. Iunderstand now that Dr Bertin is an Associate Professor but that was not apparent fromthe material then before me.[33] In my decision, I did not consider it necessary or appropriate to go into thedetail of Dr Bertin's evidence. I considered it sufficient to record, at [50] of myjudgment, that I did not accept that the report prepared by Dr Bertin amounted toevidence of intentional mistreatment by the equine hospital that had brought a claimagainst Mr Jones for unpaid fees. I stated:Whatever the report stands for, there is nothing in it that would supportallegations of deliberate mistreatment, fraud or conspiracy; nor is thereanything in that report that bears on Mr Jones's defences to Stace Hammond'sclaim.[34] I reached that conclusion for the following reasons.10 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].[35] In his first affidavit, Dr Bertin recorded that he had been asked to reviewmedical evidence in relation to a mare, Saltatio, and her foal which had been diagnosedwith and treated by the Scone Equine Hospital for what was suspected to be neonatalisoerythrolysis (NI) after the foal's birth.[36] Dr Bertin stated in his first affidavit that:10. On the evidence I have been given and in my professional opinion, Iam minded to think that at the time the foal was born and shortly after,it was exhibiting clinical signs more akin to that of either acutehaemorrhage and neonatal sepsis.Conclusion11. Given my review of the evidence considered, I do not believe that atthe time of the foals birth that it was suffering from NI, and that thiswas certainly confirmed to be the case later when blood tests revealedno indications of NI.12. To the extent that I am able to comment, a more robust approach atthe time of the foals birth in handling its ill-health would have been toconsider more likely diagnoses that are consistent with the clinicalsigns that the foal was experiencing.[37] It is apparent that Dr Bertin considered there had been a misdiagnosis of thefoal's condition. He did not allege deliberate mistreatment of the foal.[38] Dr Bertin's second affidavit was made principally in response to a reportprepared by Associate Professor Brett Tennent-Brown, an Associate Professor inEquine Internal Medicine at the University of Melbourne's Faculty and of Veterinaryand Medical Sciences.[39] In his report, Associate Professor Tennant-Brown commented on Dr Bertin'saffidavit. He stated that Dr Bertin's description and explanation of NI was largelyaccurate but contained some errors that suggested an incomplete understanding of thepathogenesis and clinical presentation of the condition. At the conclusion of his report,Associate Professor Tennant-Brown stated:Based on the clinical notes, medication records and contemporaneous reports,clinicians attending the Saltatio '18 foal were immediately aware of theseverity of this foal's condition. The treatments provided were life-saving andentirely appropriate. The fact this foal survived is a testament to thepromptness and effectiveness of the actions of the attending veterinarians andintensive monitoring and supportive care provided by nursing staff. In theinformation that was provided to me, I found no evidence of unnecessary orexcessive treatments and in my opinion, the level of care exceeded thatgenerally expected in the industry.[40] In his second affidavit, Dr Bertin responded to Associate Professor Tennant-Brown's report, particularly with regard to the existence of NI in the foal and thediagnosis of that condition. In a summary at paragraph 36 of the affidavit, Dr Bertinstated that he did not believe the filly (the foal) suffered from NI but believed shesuffered from umbilical haemorrhage and that, given the information available, he didnot believe it was reasonable to conclude the filly had been suffering from NI.Dr Bertin also stated his opinion that Associate Professor Tennant-Brown "strugglesto support a finding of NI" and it appeared to Dr Bertin that Associate ProfessorTennant-Brown's conclusions were more that, in other respects, the foal had beenadequately cared for, including the umbilical haemorrhage, so the incorrect NIdiagnosis was of no moment.[41] Again, in this summary, Dr Bertin makes no allegation of deliberatemistreatment of the foal.[42] Mr Jones says I paid insufficient attention to one section of Dr Bertin's secondaffidavit in which, at paragraphs 30 to 35, Dr Bertin recorded comment he had beenasked to make on the birth of the foal and her treatment up until the time she arrivedat the Scone Equine Hospital.[43] Dr Bertin said that he understood that the foal's birth had been difficult andhad resulted in an umbilical haemorrhage and that, while attempts had been made tostop the bleeding, the umbilical cord had not been tied before the foal had beentransported to the hospital with a towel applied to the foal's belly.[44] Mr Jones places particular emphasis on paragraph 35 of Dr Bertin's secondaffidavit which stated:35. I cannot imagine the circumstances in which it would not have beenpossible to ligate the umbilical cord in some way to stop the bleedingof the foal and the passage of up to 9 hours, that is, from 2.00 am towhen the foal apparently arrived at the clinic is inexplicable in termsof the emergency treatment that would have been necessary at the timeof the birth. In my opinion the delayed ligation and resulting bloodloss would have had a significant impact on the care of the foal as itwould justify hospitalisation and could be considered as a pre-disposing factor for complications such as sepsis that occurred.[45] Mr Jones says that Dr Bertin concludes, in the following paragraph of hisaffidavit, that the care of the foal when it arrived at Scone Equine Hospital was clearlyfar below the standard of care to be expected by a veterinarian. Mr Jones submits that"these matters" in conjunction with similar issues referred to in his affidavit of 18April 2021, which he swore and filed in this proceeding, " give rise to more than atenable inference of foul play of which Mr Ellis was a significant part."[46] I do not agree. I do not accept that Dr Bertin's evidence gives rise to a tenableinference of foul play in Australia, let alone foul play involving Wentworth Grange orMr Ellis in New Zealand.[47] First, in paragraph 36 of his second affidavit, Dr Bertin does not offer hisopinion on the standard of care of the foal prior to her arrival at the Hospital.Paragraph 36 deals principally with whether the foal had been suffering from NI andwhether the diagnosis of NI by the Scone Equine Hospital had been reasonable.[48] Secondly, except for paragraphs 30 to 35 of Dr Bertin's second affidavit, all ofthe medical evidence in the New South Wales proceeding that Mr Jones sought to putin evidence concerned the treatment of the foal after its arrival at the Scone EquineHospital. That is to be expected because the Hospital was seeking payment for thecare afforded the foal at the Hospital. The evidence was not focused on the treatmentof the foal prior to its arrival at the Hospital.[49] Thirdly, even in paragraph 35 of his second affidavit, Dr Bertin makes noallegation of foul play or deliberate mistreatment of the foal prior to its arrival at theHospital. Dr Bertin was also careful to preface his comments on the foal's conditionon arrival at the Hospital by recording that his assessment could only be generalbecause it was based on information supplied to him by Mr Jones.[50] Finally, there is nothing in Dr Bertin's affidavits that links whatever happenedin Australia to the alleged mistreatment of Mr Jones's horses by Wentworth Grange inNew Zealand. Even less does that information provide a credible basis for linkingwhat happened in Australia to Mr Jones's failure to pay the fees he owes to StaceHammond. At the hearing of the current applications, Mr Jones himself acknowledgedthat Stace Hammond had no knowledge of what had happened to his foal in Australia.That acknowledgment further underlines the fact that whatever happened in Australiacan have no bearing on Stace Hammond's obligations to Mr Jones or on Mr Jones'sobligations to pay Stace Hammond's fees.[51] For all these reasons, I do not accept that I made any error with regard to theassessment of Dr Bertin's evidence or that a that a fair-minded lay observer wouldconclude that I was biased and did not bring an impartial mind to that assessment.Mr Jones's additional affidavit[52] The third and fourth arguable errors asserted by Mr Jones relate to myconsideration of extracts from an affidavit Mr Jones prepared for use in a separateproceeding which he subsequently commenced after the hearing of his appeal in thisproceeding.[53] That subsequent proceeding was against 16 named defendants and "unknowndefendants" as the seventeenth defendant. As Venning J stated in a judgment dated29 November 2021:11[2] In the statement of claim Mr Jones alleges conspiracy against the firstto ninth defendants and alleges harassment and breach of privacy against alldefendants. In relation to two of the defendants, the Hon Justice Jagose andthe Attorney-General, the pleadings also allege bad faith, and breach of theNew Zealand Bill of Rights Act 1990 by the Judge during the course of aproceeding presided over by him.[54] Venning J struck out the claims against Jagose J and the Attorney-General inthe fifth and sixth causes of action as an abuse of process, struck out the claims againstthe tenth to seventeenth defendants in the first to fourth causes of action as an abuse11 Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220.of process and stayed the claims against the first to ninth defendants pending anamended pleading in proper form being filed against those defendants.12[55] I agree that I did not accept the existence or materiality of the matters describedin the exhibited extracts. After describing the nature of the material at [47] of myjudgment, I stated at [48]: the material provides no credible support to the existence of the allegedconspiracy and nothing of any probative value to link the alleged conspiracyto Stace Hammond's ability to act for Mr Jones in defending the WentworthGrange claim.[56] Nothing Mr Jones has put forward in his application for leave to appeal causesme to alter that conclusion. It is not enough for Mr Jones to allege conspiracy andthen say his allegations should be accepted by the Court in the absence of evidence tothe contrary. I refer again to the observation by the Court of Appeal in Krukziener vHanover Finance Ltd, that a Court need not accept uncritically evidence that isinherently lacking in credibility or is inherently improbable. The material in theextract clearly falls into that category given its content as described at [47] of myjudgment.[57] I did not reach any conclusions regarding Mr Jones's competence or state ofmind. I repeated the observation that Venning J had made in his judgment that thematerial put forward by Mr Jones "raises issues as to Mr Jones's competence andcurrent state of mind." That is an observation, not a conclusion. Nor was it a criticismof Mr Jones. It is for others to decide whether the observation amounts to a breach ofthe Guidelines for Judicial Conduct 2019.[58] My findings and observations were based on the material Mr Jones sought toadduce as evidence. I found that that material was not credible. I do not accept that Imade any error with regard to the assessment of that material or that a that a fair-minded lay observer would conclude that I was biased and did not bring an impartialmind to that assessment.12 At [34] – [36]. The named defendants included Mr Ellis as fifth defendant but did not include theTe Akau Stud or Wentworth Grange.The remaining arguable errors[59] With regard to Mr Jones's fifth asserted arguable error, the question is notwhether I understood the potential connection between the conspiracies he referred toand their impact on his relationship with Stace Hammond. Rather, the question iswhether Mr Jones had established a tenable basis for the existence of such conspiraciesand their relevance to his non-payment of Stace Hammond's fees. For the reasonsgiven in my earlier judgment, I am satisfied that Mr Jones had not established such atenable basis. Mr Jones's submissions do not alter that conclusion.[60] The same conclusion holds for the asserted error concerning the adequacy ofthe emphasis on the fiduciary obligations of Stace Hammond. The plain facts are:(a) Stace Hammond raised the question of a possible conflict of interestearly in the instruction and assured Mr Jones they did not consider therewas any such conflict;(b) Mr Jones did not challenge that advice;(c) Mr Jones proceeded to engage with Stace Hammond and Mr Ring forthe next four and a half months in preparing his defence to thatproceeding;(d) Stace Hammond and Mr Ring withdrew from the proceeding afterMr Jones made it clear he wanted to include in his pleadings materialthat Stace Hammond and Mr Ring considered would put them in breachof the Lawyers and Conveyancers Act (Lawyers: Conduct and ClientCare) Rules 2008;(e) Mr Jones did not object or raise any issue regarding the alleged conflictof interest then or in correspondence over the following five monthsconcerning Mr Jones's unpaid fees;(f) It was only after Stace Hammond had brought the present proceedingthat Mr Jones raised that issue.[61] In these circumstances and in the absence of any tenable evidence to supportMr Jones's allegations of one or more conspiracies, the weight to be given to StaceHammond's acknowledged fiduciary obligations is of little moment. Thoseobligations do not provide Mr Jones a tenable basis for avoiding paying fees properlyincurred on his instructions. That Mr Jones has not accepted Stace Hammond's offerto abandon its claim for fees does not make Mr Jones's position any more tenable.[62] As to the last of the asserted arguable errors, I do not accept that I over-emphasised Mr Jones's experience as a lawyer. At [68] of my judgment, I observedthat the person with the greatest knowledge of any potential conflict of interest arisingfrom Mr Jones's dealings with Te Akau Stud and Mr Ellis was Mr Jones himself. Thatis so, regardless of whether or not Mr Jones is a lawyer. I then observed that Mr Joneswas an experienced litigator and understood the situation concerning conflicts – as hehad said himself in an email to a partner at Stace Hammond. I also observed that, ifthere really was a real possibility of a conflict of interest, Mr Jones was well placed toprovide evidence of that conflict. I found that Mr Jones had not provided any evidenceof that alleged conflict when he first raised the issue it or subsequently. That is a fact,regardless of whether Mr Jones is a lawyer.[63] Nor do I accept Mr Jones's assertion that he was not provided with courageouswell-reasoned and independent advice. The record shows that experienced lawyers,who had worked closely with Mr Jones over many years, courageously refused tofollow Mr Jones's instructions to include in his pleadings material they consideredwould put them in breach of their professional obligations. Their reward wasMr Jones's refusal to pay their fees and their being subjected to unsubstantiatedallegations of being complicit in a conspiracy against Mr Jones.[64] For all these reasons, I do not consider that any of the asserted errors raisesquestions of law or fact capable of bona fide and serious argument. They are allcontingent on acceptance of the existence of a conspiracy or conflict of interest ofwhich Mr Jones has provided no cogent or credible evidence.Are the asserted arguable errors of general or public importance? Are the errorsof sufficient importance to Mr Jones to outweigh the lack of general orprecedential value? Do the circumstances warrant incurring further delay?[65] Even if I considered that the asserted errors were arguable, it is patent that theyare not of general or public importance. Nor are they of sufficient importance toMr Jones to outweigh the lack of general or precedential value. Nor do they warrantincurring further delay.[66] The asserted errors relate to a judgment dismissing Mr Jones's appeal againstsummary judgment entered by the District Court for the non-payment of fees of justunder $15,000 (excluding interest and costs) for legal advice provided over two yearsago. Despite the importance that Mr Jones ascribes to the issues that he says justifyhis refusal to pay those fees, Mr Jones has adduced no credible or cogent evidence ofthe conspiracies he alleges in support of his refusal to pay a relatively small amountfor fees incurred on his instructions.[67] In these circumstances, I am satisfied that the proceeding does not warrant afurther hearing before the Court of Appeal.Are the interests of justice served by granting leave?[68] For all of the above reasons, I am satisfied that the overall interests of justicewould not be served by granting Mr Jones leave to appeal or by granting leave toappeal my decision dismissing Mr Jones's application to adduce further evidence.[69] For whatever reason, Mr Jones is engaged in a misguided endeavour to avoidpaying fees incurred on his instructions by alleging the existence of a conspiracy orconspiracies of which he has provided no credible or cogent evidence.Result[70] I dismiss Mr Jones's application for leave to appeal and his application forleave to appeal my decision dismissing his application to adduce further evidence onappeal.Costs[71] Stace Hammond is entitled to costs on a 2B basis. I reserve leave to apply foran increase over scale costs.______________________G J van Bohemen JAppendix: Recusal guidelines for High Court judgesIntroductionSection 171 of the Senior Courts Act 2016 requires the Chief High Court Judge, inconsultation with the Chief Justice, to develop and publish recusal guidelines for the HighCourt. These recusal guidelines are issued after consultation with the Chief Justice.1. General principles1.1 A judge has an obligation to sit on any case allocated to him or herunless grounds for recusal exist.1.2 A judge should recuse him or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonableapprehension that the judge might not bring an impartial mind to theresolution of the question the judge is required to decide.1.3 The standard for recusal is one of "real and not remote possibility",rather than probability.1.4 The test is a two-stage one. The judge must consider1.4.1 First, what it is that might possibly lead to a reasonableapprehension by a fully informed observer that the judgemight decide the case other than on its merits; and1.4.2 Second, whether there is a "logical and sufficient connection"between those circumstances and that apprehension.1.5 The question of recusal is for the judge hearing the case. Some of thematters the judge should consider are:1.5.1 A judge should apply the above principles firmly and fairlyand not accede too readily to suggestions of bias.1.5.2 A judge should be mindful of the burden that passes to otherjudges if the judge recuses him or herself unnecessarily.1.5.3. A judge is not required to recuse him or herself merelybecause the issues involved in a case are in some indirect wayrelated to the judge's personal experience or that the judge haspreviously dealt with the case.1.5.4 The making of a complaint to the Judicial ConductCommissioner against a judge does not of itself serve todisqualify the judge from hearing cases involving thecomplainant.1.5.5 If, after considering all relevant circumstances, there is doubtabout whether there may properly be an appearance of bias, itmay be prudent for the judge to decline to sit in that case.1.6 Conflicts of interest can arise in a number of different situations. Ajudge should be alert to any appearance of bias arising out ofconnections with litigants, their legal advisors or witnesses.1.7 The apprehension of bias is case dependent. The fact that a particularrelationship falls outside the examples in these guidelines does notautomatically mean that there cannot be a reasonable apprehension ofbias in the particular circumstances of the case at hand.2. Recusal where relationship exists2.1 The existence of a relationship with a party, lawyer or witness will notin itself create a reasonable apprehension of bias. There must be somelogical connection between the relationship and its capacity toinfluence the judge to deviate from the course of deciding a case onits merits alone.2.2 A judge should recuse himself or herself where a party, lawyer orwitness of disputed facts is a close relative or domestic partner of thejudge.2.3 Other situations are not so clear cut. Some examples of commonrelationships that a judge should consider as they may give rise to theapprehension of bias are:2.3.1 A party or witness of disputed facts is a close friend of thejudge;2.3.2 A witness of disputed facts is someone known to the judge orsomeone about whom he or she has formed a view, such as aformer client; or2.3.3. A party, lawyer or witness of disputed facts is a businessassociate of the judge. Much will depend on the nature andextent of the association. For example, if the judge is directlyor indirectly financially dependent on or indebted orotherwise beholden to a party, lawyer, or witness, the judgeshould recuse himself or herself unless that dependence orindebtedness is so minimal as to be immaterial.2.4 The fact a judge has a friendship or past professional association withlawyers engaged in the case, will not generally be sufficient to requirerecusal. The test as always is whether a fair minded fully informedobserver would reasonably apprehend the judge might not beimpartial in the circumstances of the case.3. Recusal arising from legal practice3.1 A judge should recuse himself or herself if he or she served as a legaladvisor in respect of the matter in issue when in practice.3.2 If the matter in issue was dealt with by the firm at a time when thejudge was a member of the firm, the judge may need to considerrecusal even if the judge had no personal involvement in providingadvice about it if the Judge obtained relevant knowledge about thematter in issue or had formed a view of the parties.4. Recusal where economic interest4.1 A judge should recuse him or herself if he or she, or a close relativeor member of the judge's household, directly or indirectly has aneconomic interest in the outcome of the proceedings. Such conflictsmay arise out of current commercial or business activities, financialinvestments (including shareholding in public or private companies)or membership or involvement with educational, charitable or othercommunity organisations which may be interested in the litigation.4.2 An economic interest may also arise in another situation. That iswhere the case is to decide a point of law which may affect a judge inhis or her personal capacity beyond that of the public generally. Indeciding whether to recuse him or herself, a judge should have regardto the point of law, to the nature and extent of his or her interest, andthe effect of the decision on others with whom the judge has arelationship, actual or foreseeable.4.3 Shareholdings in litigant companies or companies associated withlitigants should be disclosed even where the shareholding is small.They should lead to recusal if the value of the shareholding would beaffected by the outcome of the litigation.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 firmopinion on the 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.6. Disclosure of conflict of interest: principles6.1 Adequate disclosure protects the integrity of the judicial process andis also a defence against later challenges to the decision.6.2 Disclosure does not constitute an acknowledgement that thecircumstances give rise to a reasonable apprehension of bias.6.3 Disclosure of any matter which might give rise to objection should beundertaken even if the judge has formed the view that there is no basisfor recusal. There may be circumstances not known to the judge whichmay be raised by the parties consequentially upon such disclosure.7. Disclosure of conflict of interest: practice7.1 Disclosure should be made as early as possible before the hearing.7.2 When making disclosure, the judge should issue a minute through theRegistrar to counsel for all parties.7.3 The judge should ensure that the minute contains sufficientinformation, without unnecessary detail, to enable the parties todecide whether to make a recusal application. It is undesirable forparties to be placed in the position of having to seek furtherinformation from the judge.7.4 On occasion advance disclosure often may not be possible in light oflisting arrangements. In this situation, disclosure on the day of thehearing may be unavoidable. If this occurs:7.4.1. Discussion between the judge and the parties about whetherto proceed should normally be in open court, unless the caseitself is to be heard in chambers.7.4.2 The parties should be given an opportunity to makesubmissions on recusal after full disclosure of thecircumstances giving rise to the question of recusal.7.4.3 The judge should be particularly mindful of the difficultposition that the parties and their advisors are placed in bydisclosure on the day of the hearing. Late disclosure puts theparties in a situation where it might appear to them thatconsent is sought even although a ground of recusal actuallyexists.7.5 The consent of the parties to a judge sitting is important but notdeterminative, as the subjective perceptions of the parties are notrelevant to whether there is a reasonable apprehension of bias.7.5.1 Even where parties consent, the judge should nonethelessrecuse himself or herself where he or she is satisfied recusalis required.7.5.2 In other cases, where the judge has disclosed a matter whichmight give rise to objection and has heard and consideredsubmissions, he or she may form the view that the hearingmay proceed notwithstanding the lack of consent.7.6 In circumstances of urgency, where the judge cannot be replaced forpractical reasons, he or she may need to hear the case, notwithstandingthat there may exist arguable grounds in favour of recusal. Consentwill be a particularly relevant consideration in this situation.