The Judicial Committee of the Privy Council Decisions

 


Man O''War Station Ltd & Anor v Auckland City Council & Anor (1) (New Zealand) [2002] UKPC 28 (29 May 2002)

Privy Council Appeal No. 21 of 2001

(1) Man O’War Station Limited and

(2) Huruhe Station Limited Appellants

v.

(1) Auckland City Council (formerly Waiheke County

Council) and

(2) H.M. Attorney General for New Zealand Respondents

(Judgment No. 1)

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL, OF THE

7th May 2002, Delivered the 29th May 2002

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Present at the hearing:-

Lord Steyn

Lord Mackay of Clashfern

Lord Millett

Lord Phillips of Worth Matravers

Lord Scott of Foscote

[Delivered by Lord Steyn]

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1. There are two appeals against judgments of the New Zealand Court of Appeal before the Privy Council. The principal judgment under appeal is dated 11 April 2000. The second judgment under appeal is dated 27 November 2000. In the second judgment the Court of Appeal rejected a motion to recall the first judgment on the ground that Blanchard J, who gave the principal judgment, was disqualified by apparent bias. Logically, it was necessary for the Privy Council to consider separately and first the appeal against the second judgment of the Court of Appeal. That is how the Board invited counsel to proceed. Having heard the appellants’ counsel’s argument on the matter and without calling on counsel for the respondent their Lordships were satisfied that the judgment of the Court of Appeal of 27 November 2000 was correct and announced that they would humbly advise Her Majesty that the appeal against that judgment should be dismissed with costs. These are the reasons for that advice.
2. In outline the forensic background is as follows. By judgments dated 19 August 1997 and 31 July 1998 Anderson J in the High Court of New Zealand upheld on the basis of the implied dedication doctrine the public status of certain roads at the eastern end of Waiheke Island. The two appellant companies, who were identified in the proceedings with a Mr Spencer, appealed to the Court of Appeal. The Auckland City Council cross appealed against a part of the High Court judgment in which Anderson J held that a further section of the roads at issue was not a public road. In a judgment dated 11 April 2000 the Court of Appeal (Gault, Henry, Keith, Blanchard and Tipping JJ) dismissed the appeal of the appellants. In the same judgment the Court of Appeal allowed a cross appeal of the Council and confirmed on the basis of the implied dedication doctrine the public character of the further section of road. Blanchard J delivered the judgment of the Court of Appeal.
3. The unsuccessful appellants applied to the Court of Appeal for an order setting aside or, in the alternative, recalling the principal judgment. In an amended notice dated 19 July 2000 the ground of the application was stated to be as follows:

“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 ...”

The witness in question had been Mr Ian Grierson, a surveyor. He was the son of Mr Max Grierson, who had been the judge’s former employer, long term partner and mentor for some 30 years. Mr Ian Grierson was the brother of Mr Bruce Grierson who had been a partner of the judge for some 11 years.
4. Before and at the hearing of the motion to recall the principal judgment counsel for the appellants submitted that the court hearing the application should exclude all members of the court who decided the appeal. Blanchard J obviously could not sit. Henry J had retired. In the result the Court of Appeal decided that Gault, Keith and Tipping JJ would hear the application. It was within their power to hear and determine the application. Nothing was said before the Privy Council which could throw any doubt on the legality, regularity or appropriateness of the proceedings of the Court of Appeal so constituted in hearing and deciding the application. In a judgment of the court Gault J dismissed the motion.
5. The issue is whether the Court of Appeal erred in ruling against the submission that Blanchard J had been disqualified, by reason of his acquaintance and association with Mr Ian Grierson, from sitting in the case. There is no suggestion that the judge had been biased. The case is that there was an appearance of bias.
6. The appellants advanced that case both on the basis of the relationship between Blanchard J and Mr Ian Grierson’s father, which has been described above, and of the relationship of Blanchard J with Mr Ian Grierson himself. As to the latter, the broad picture, as revealed in the evidence before the Court of Appeal, was as follows:

(i) The judge and Mr Ian Grierson were not personal friends.

(ii) Although the two men had met from time to time at gatherings (usually those marking notable events in Mr Max Grierson’s life), they did not belong to the same sporting clubs or business associations, and had nothing much in common.

(iii) Mr Ian Grierson had not spoken to the judge since his appointment to the High Court bench some 8 years before the appeal was heard.

(iv) The firms of which the judge was a partner before he was appointed to the bench had acted for the firm of which Mr Ian Grierson was a partner before its incorporation as a company. The judge had never acted for Mr Ian Grierson personally.

(v) The judge had acted as a trustee in respect of retirement arrangements for the partners of Mr Grierson’s firm prior to incorporation of that partnership in around 1984. However, there was apparently no direct contact between the judge and Mr Ian Grierson on a professional basis.

(vi) The broad picture is that the two men had known of each other for a long time and had some sporadic contact over the years, but had no contact at all since the judge was appointed to the High Court Bench.

While this brief summary is necessarily imprecise it is unnecessary to set out the effect of the evidence in greater detail.
7. Gault J considered the importance of Mr Ian Grierson’s role in the trial. He said that Mr Ian Grierson was not only a witness as to technical survey work but also as to “events and the roles of key people involved at the relevant times”. The Court of Appeal treated him as an important witness.
8. Against this background Gault J approached the matter on the basis of legal principles established in New Zealand law. In accordance with the speech of Lord Goff of Chieveley in R v Gough [1993] AC 646, which had been followed by the New Zealand Court of Appeal in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142, Gault J addressed the question whether there was a real danger of bias on the part of Blanchard J. He also took into account the guidance of the English Court of Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 and observations by the Constitutional Court of South Africa in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147, 177.
9. Gault J rejected the contention that there was an appearance of bias. He explained the position as follows:

“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.”

This was the basis on which the reconstituted Court of Appeal unanimously dismissed the motion.
10. On appeal to the Privy Council the appellants invited the Board to adopt for New Zealand the adjustment of the test in Gough enunciated by Lord Hope of Craighead in Magill v Porter and Weeks [2001] UKHL 67, namely that “the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (para 103). This adjustment is consistent with European and Scottish jurisprudence, and is broadly in line with Australian jurisprudence. Both tests proceed from the point of view of an informed view of the facts, and both concentrate on the possibility of bias. But the adjusted test emphasises the perspective of the fair-minded observer rather than the view of the court. The Board does not have the benefit of the view of the Court of Appeal on the point whether the law in New Zealand should be so altered. In these circumstances their Lordships are not persuaded that it would be right to restate the law for New Zealand as requested. In any event, the distinction is a fine one, notably since even on the Gough test the court undoubtedly had to take account of public perception and confidence. On the facts of the present case the difference between the two tests cannot arguably influence the outcome.
11. This is a corner of the law in which the context, and the particular circumstances, are of supreme importance. In their Lordships’ view an intense focus on the essential facts of the case, as highlighted by Gault J, convincingly shows that there was no danger or possibility of apparent bias. The same is true on the Magill test. Much was made by counsel for the appellants of the analogy of a judge being disqualified from sitting on a case involving the son of his brother or best friend. No doubt this proposition would usually be correct. But such disembodied analogies, stripped from their context, are not helpful. They do not answer the specific reasoning of the Court of Appeal on the particular facts of the present case. The lengthy written arguments, and sustained oral argument of counsel for the appellants, have in their Lordships’ view in no way dented the reasoning of the Court of Appeal. On the contrary, their Lordships are satisfied that no fair-minded observer could possibly have doubted the neutrality and objectivity of Justice Blanchard.