LAGOLAGO v WELLINGTON STANDARDS COMMITTEE 2 [2018] NZHC 1090

LAGOLAGO v WELLINGTON STANDARDS COMMITTEE 2 [2018] NZHC 1090 [18 May 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2015-485-635[2018] NZHC 1090IN THE MATTER of an appeal under s 253 of the Lawyers andConveyancers Act 2006BETWEEN PAPALI'I TOTI LAGOLAGOAppellantAND WELLINGTON STANDARDSCOMMITTEE 2RespondentOn the papers:Counsel: A C Beck for AppellantD R La Hood for RespondentJudgment: 18 May 2018JUDGMENT OF CHURCHMAN JBackground[1] On 2 May 2018, I heard an application by the appellant for leave to appeal tothe Court of Appeal in relation to a costs decision given by Clifford J on 8 December2017.[2] The costs decision was the sequel to a judgment by Clifford J on the substantiveappeal which had been delivered on 30 November 2016.[3] The reason that the application for leave to appeal to the Court of Appeal inrespect of the costs decision came before me was because Clifford J is now sitting inthe Court of Appeal.The present application[4] On 2 May 2018, I heard the application for leave to appeal.[5] By memorandum dated 4 May 2018, Mr Beck, counsel for Ms Lagolago,requested that I give consideration as to whether this was a case I could properlydecide.[6] By this stage I had already heard the case and had commenced preparing adecision.[7] By minute of 7 May 2018, I directed that if the applicant wished to formallypursue a recusal application she was required to file and serve such an applicationalong with any supporting affidavit.[8] On 14 May 2018, a recusal application together with an affidavit byMs Lagolago was received by the Court.Grounds of application[9] The principal grounds for the application were that in 2012, some six yearsago, I had been a member of a panel which had processed applications by lawyers forappointment as legal services providers. It was alleged that during the course ofdiscussions with other panel members I had "expressed firm views regarding theappellant's professional conduct".[10] It was claimed that the appellant's professional conduct is directly relevant tothe current application and it was said to be "one of the factors considered by Clifford Jto be relevant to his costs decision."[11] It was claimed that a fair-minded, fully informed observer would have areasonable apprehension that I might not bring an impartial mind to the determinationof the application for leave to appeal the costs decision.[12] Counsel for the respondent has filed a memorandum on 16 May 2018 abidingthe decision of the Court.The relevant principles[13] As required by s 171 of the Senior Courts Act 2016, the Chief High CourtJudge, in consultation with the Chief Justice, has developed and published a recusalguidelines. The general principles in those guidelines are:(a) a Judge has an obligation to sit on any case allocated to him or herunless grounds for recusal exist;(b) a Judge should recuse him or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehensionthat the Judge might not bring an impartial mind to the resolution of thequestion the Judge is required to decide;(c) the standard for recusal is one of "real and not remote possibility" ratherthan probability; and(d) the test is a two-stage one. The Judge must consider:(i) first, what it is that might possibly lead to a reasonableapprehension by a fully informed observer that the Judge mightdecide the case other than on its merit; and(ii) second, whether there is a logical and sufficient connectionbetween those circumstances and that apprehension.[14] The matters that a Judge is required to consider on a recusal applicationinclude:(a) a Judge should apply the above principles firmly and fairly and notaccede too readily to suggestions of bias;(b) a Judge should be mindful of the burden that passes to other Judges ifa Judge recuses himself or herself unnecessarily;(c) a Judge is not required to recuse him or herself merely because theissues involved in a case are in some indirect way related to the Judge'spersonal experience or that the Judge has previously dealt with the case;(d) the making of a complaint to the Judicial Conduct Commissioneragainst the Judge does not of itself serve to disqualify the Judge fromhearing cases involving the complainant;(e) if after considering all relevant circumstances, there is doubt aboutwhether there may properly be an appearance of bias, it may be prudentfor the Judge to decline to sit in that case.[15] The guidelines contemplate that a recusal application will occur prior to aJudge hearing a matter. They do not expressly address the situation of a party applyingfor a recusal once the hearing has finished.[16] The Judge is also required to be alert to any appearance of bias arising out ofconnections with litigants, their legal advisors or witnesses.[17] The guidelines emphasise that there must be some logical connection betweenthe relationship and its capacity to influence the Judge to deviate from the course indeciding the case on its merits alone.Analysis[18] The starting point is to see what connection, if any, there was between myinvolvement with Ms Lagolago in 2012, and the application for leave to appeal thecosts decision on 2 May 2018.[19] As a result of the implementation of the Legal Services Act 2011, all legal aidlawyers needed to reapply to be legal aid providers. The task of assessing theapplications and working out what categories the applicants fell within was a hugetask which involved processing hundreds of applications.[20] I was asked by the New Zealand Law Society if I would represent the Societyas one of its nominees on the committee that processed the applications for theWellington region. The role was a voluntary one which I undertook as an aspect toservice to the profession.[21] Because of the large number of applications that were required to be consideredand the time that has passed, I have little independent memory of Ms Lagolago'sapplication. I do recall that there were some problems with it and that there wasspecific discussion by the committee about her case. This distinguished the case frommany other applications where, having read the paper work submitted in support ofthe application, it was clear that the applicant was appropriately qualified and therewas accordingly little, or at times no, comment or discussion at the formal committeemeeting.[22] Reviewing the material filed with the affidavit of Ms Lagolago has jogged mymemory as to the nature of the concern. Ms Lagolago has been involved as counselin some judicial review proceedings. Unusually, those proceedings had been thesubject of adverse comment from two High Court Judges.[23] Ms Lagolago had referred to this judicial review case in her application. TheRegistrar of the committee had provided copies of the decisions of the Judgescontaining the comments for consideration prior to the committee meeting.[24] The material indicated that Ronald Young J had warned Ms Lagolago aboutthe consequences of proceeding with the judicial review application but she hadignored his warning. The proceedings were ultimately struck-out by Gendall J. Mymemorandum to the other committee members set out the language that Gendall J hadused in his decision on the strike-out application. He had used words like "hopeless,futile, wasteful (of resources), misconceived, misguided, untenable and an abuse ofprocess" to describe the claim. The extent of my contribution was to note thatGendall J was not a Judge prone to exaggeration and that on reading the decision, hiscomments appeared to have been well justified.[25] The issue before the committee was not Ms Lagolago's competence as a lawyerper se, it was whether or not she was appropriately skilled and experienced to beappointed as a legal services provider.[26] In the affidavit Ms Lagolago has filed in support of these proceedings, she saysthat I expressed the view that it would take something extraordinary for me to changemy views about her professional ability.[27] The views that she is referring to were what I specifically described as a"preliminary" view, that I provided ahead of the meeting at which the full committeewould discuss Ms Lagolago's case. The actual sentence in context was:Without wanting to prejudge the matter, it would take something extraordinaryto convince me that my preliminary view needed changing.[28] That view was in connection with the application then in hand, and based onthe comments that two Judges had made about her conduct of a judicial review case.[29] In her affidavit in support of the present application, Ms Lagolago says:There is no indication that he subsequently changed his views, and I believethey were instrumental in my application being declined.[30] All of the members of the committee had grave reservations aboutMs Lagolago's application and, my recollection is that the decision to decline it wasunanimous.[31] The 2012 application was the first time I ever had anything to do withMs Lagolago. I never, in fact, met her in person and my knowledge of her wasconfined to a consideration of the material that she had supplied in support of her thenapplication. Up until the application for leave to appeal the costs decision was heardon 2 May 2018, I had not heard her name mentioned since 2012.[32] In terms of assessing whether there is a "logical and significant connectionbetween the committee I sat on in 2012 and the application for leave to appeal thecosts decision",1 I note that the subject matter was completely different and that thecosts decision in respect of which leave was sought, had no connection whatsoeverwith the matters that the committee I had been a member of had considered some sixyears previously.[33] The application asserts that Ms Lagolago's " professional conduct is directlyrelevant to the current application, and is one of the factors considered by Clifford Jto be relevant to his costs decision."[34] That significantly overstates the actual situation. The test for the leaveapplication is whether or not an issue of general or public importance exists so as tojustify granting leave to appeal. That is not a question which involves forming anopinion on Ms Lagolago's professional conduct. It was no part of the leave applicationfor me to form a view on the merits of the substantive proceedings which had longsince been disposed of by Clifford J. I was not in any way sitting in judgment on thesubstantive decision of Clifford J. The leave application purely related to the costsdecision.[35] In assessing whether a fully informed observer might have a reasonableapprehension that I might decide the case other than on its merits, any such observeris likely to note the relatively focused nature of an application for leave to appeal tothe Court of Appeal and that the application related solely to a costs decision ratherthan the substantive decision. Such an observer is also likely to note that the issues ofwhether or not the leave application disclosed a question of general or publicimportance is not dependent on any finding as to Ms Lagolago's competence.[36] A fully informed observer is also likely to note the complete absence of anyconnection between subject matter of the costs decision and the application made in2006 by Ms Lagolago therefore distinguishing this case from the decision relied uponby the applicant in Erris Promotions Limited v Commissioner of Inland Revenue.2[37] Guideline 1.5.3 of the Recusal Guidelines makes it clear that:1 See Saxmere Company Limited v Wool Board Disestablishment Company Limited [2009]NZSC 72, [2010] 1 NZLR 35.2 Erris Promotions Limited v Commissioner of Inland Revenue 16 PRNZ 1014.A Judge is not required to recuse him or herself merely because the issuesinvolved in a case are in some indirect way related to the Judge's personalexperience or that the Judge has previously dealt with the case.[38] If having previously dealt with the same case does not of itself justify recusal,having in a different context many years previously, come across Ms Lagolago is evenless of a basis to justify recusal.[39] I am also required to consider the burden that passes to other Judges should Irecuse myself unnecessarily. A most unusual feature of the present case is that therecusal application was not made prior to the hearing or even at the time of the hearing,but after the hearing had been concluded. If I were to recuse myself, not only wouldanother Judge have to hear the matter, but the entire case would have to be reheardwith the inconvenience that would entail.[40] The opinion that I expressed in relation to Ms Lagolago's 2012 applicationrelated specifically to that application and was in large part a summary of (includinga verbatim repetition) of conclusions reached by two High Court Judges in respect ofa case that had come before them. It was appropriate in that context. It was a firmopinion but one which was shared by other informed observers.[41] Even when a Judge has expressed a firm opinion on an issue that is relevant tosubsequent proceedings before the Judge, that does not, of itself, disqualify the Judge.The Supreme Court in A (SC 106/2015) v R said:3The New Zealand guidelines for Judicial Conduct recognise that there may becases where a Judge should disqualify him or herself from hearing a case if itconcerns a matter upon which the Judge has made public statements of firmopinion. This can include expressions of opinion in an earlier case or in anearlier stage of proceeding. However, the "expression of opinion" would havehad to have been extreme and unbalanced before a reasonable observer wouldthink the Judge is not able to have an open mind.[42] In the circumstances, it is difficult to see how an informed observer mightregard the paraphrasing of the opinions of two High Court Judges as being "extremeand unbalanced".3 A (SC 106/2015) v R [2006] NZSC 31 at [25].[43] For these reasons, I dismiss the application for recusal.Churchman JSolicitors:Luke Cunningham Clere, Wellington for Respondent