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Novel attempt to ‘judge-shop’ unsuccessful

28 Apr 2023

| Author: Nadia Sussman

Application for recusal from all future proceedings involving applicant – allegations of bias – High Court recusal guidelines – Saxmere applied – question of recusal is for the allocated judge – obligation to preside on allocated cases – judicial oath – blanket applications inconsistent with requirement to consider apparent bias on case-by-case basis – adverse outcomes for litigant in prior cases not inherent ground for recusal – ‘judge-shopping’ impermissible  

Body Corporate 81012 v Memelink [2023] NZHC 835 (Churchman J)

Please note: this decision refers to the High Court recusal guidelines (Justice Venning, 12 June 2017); Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1) [2009] NZSC 72; and Siemer v Heron [2012] 1 NZLR 293 (SC).

Busy High Court litigant, Harry Memelink, applied for an order that Justice Churchman be recused from all future proceedings involving him, as well as from proceedings involving any of seven other entities and parties connected to him. Memelink further requested that Justice Grice be allocated to preside over his cases instead. The application was not made in the context of any particular proceeding. Memelink reasoned that, with his various ongoing cases, it is “highly likely” Churchman J  would preside over one of his matters again.

Such an application is novel and does not appear to be contemplated by the High Court recusal guidelines.

Memelink’s supporting affidavit made “sweeping” allegations in relation to three groups of cases. These include the allegation that Churchman J unduly chastised Memelink’s counsel for errors. Further, that when Memelink self-represented, he was cut off and not permitted to speak for his “full allotted time”.  Memelink also infers bias from the “negative tone” of the following opening words of a judgment: “[1] This decision is yet another chapter in the ongoing saga of litigation involving Harry Memelink…”

Applicable principles – A judge has an obligation to sit on any case allocated to him or her unless grounds for recusal exist (High Court recusal guidelines, 1.1) – a practice of judges disqualifying themselves without good reason might encourage litigants to ‘judge-shop’ and risk affecting the rights of other parties (Saxmere) – the question of recusal is for the judge hearing the case (1.5) –  a judge should recuse him/herself “if, in the circumstances, a fair-minded, fully-informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (1.2) – standard is one of “real and not remote possibility” (1.3) – applicant must: (a) identify circumstances that might lead the judge to decide a case other than on its merits; and (b) establish a logical connection between those circumstances and the possibility that the judge may decide the case otherwise than on its merits (Saxmere) – that a judge has decided against the litigant on previous occasions is not itself a ground for recusal, nor is the fact of having been the subject of a complaint to the Judicial Conduct Commissioner – apparent bias must be assessed on a case-by-case basis – the judicial oath commits judges to independence and impartiality in their service (Siemer) – judges are accustomed to putting aside their views of litigants that are not relevant to the issues (Siemer)

Held:

Memelink had not advanced evidence of bias.  Churchman J did not preside over the cases in which the allegedly chastised counsel represented Memelink. Further, the limitation of Memelink’s advocacy to relevant matters was necessary so as to not waste the court’s time. The impugned opening sentence was factually correct; the applicant’s “argumentative nature and track record in litigating many baseless claims is well documented”.

Further, Memelink’s application was inconsistent with the requirement to address judicial recusal on the grounds of apparent bias on a case-by-case basis.  By the very nature of the test for recusal, there can be no such blanket prescription.

Comment:

When reading any application for recusal, I am curious whether the applicant will challenge guideline 1.5, the guideline requiring the question of recusal to be determined by the judge hearing the case. Grant Hammond, writing extra-judicially in Judicial Recusal Principles, Processes and Problems (Hart Publishing, 2009), cast this aspect of recusal law as perhaps the ripest for challenge under fair trial rights provisions. I recommend pp 82 – 84 to the interested reader.

Nadia Sussman is a senior tutor and research assistant at the University of Auckland Faculty of Law

Body Corporate 81012 v Memelink [2023] NZHC 835 (1)

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