IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE	
CIV-2017-425-000007
[2020] NZHC 1337	

IN THE MATTER	of the Property (Relationships) Act 1976	
BETWEEN	SOPHIE ANNABELLE BIGGS
Plaintiff	
AND	STEPHEN TIMOTHY BIGGS
First Defendant	
AND	STEPHEN TIMOTHY BIGGS as trustee for the TIM BIGGS FAMILY TRUST
Second Defendant	
AND	LAGUNA BAY CAPITAL PTY LIMITED
as trustee for the LAGUNA BAY CAPITAL TRADING TRUST
Third Defendant	
AND	LB MANAGEMENT PTY LIMITED as
trustee for the LAGUNA BAY CAPITAL MT TRUST
Fourth Defendant	

Hearing:	On the papers	
Counsel:	D Chambers QC for the Plaintiff
M J McCartney QC for the First Defendant
J F Anderson QC for the Second, Third and Fourth Defendants	
Date of Minute:	15 June 2020	

JUDGMENT OF NATION J AS TO RECUSAL

BIGGS v BIGGS [2020] NZHC 1337 [15 June 2020]

[1]	On 12 June 2020, the plaintiff applied for me to recuse myself from presiding over the trial scheduled to begin on 22 June 2020. The grounds for the application are set out in an affidavit of Ms Biggs. I have considered that application and Ms Biggs’ affidavit.

[2]	Ms Biggs says she feels I have an imbedded bias in favour of Mr Biggs with the way the Court of Appeal varied or overturned decisions made in the High Court as to discovery and interim distributions of property to enable her to pay costs. As a result, Ms Biggs considers she will not receive a fair trial over her PRA claims. She also claims that, because of criticisms I made as to aspects of her expert accountant’s approach to the case, I will have a bias against him which will interfere with my ability and duty to impartially consider his evidence at trial.

[3]	I do not intend to expressly deal with all the points Ms Biggs raises in her affidavit. To do so is not necessary to my decision.

[4]	The issues the Court of Appeal dealt with are not issues I will be dealing with at trial. The reasons I gave for my decisions that were considered by the Court of Appeal did not require me to determine whether any party would succeed at trial on the substantive issues that will have to be dealt with at trial. I avoided making any such determination.

[5]	At the trial, the expert witnesses will be giving evidence to assist the Court, not as advocates for any party. In my judgment refusing to adjourn the trial, I referred to the way I expected to have the assistance of both the expert witnesses and counsel in dealing with trial issues. The weight to be given to the opinions of expert witnesses will depend on how those opinions accord with other evidence they rely on. Most of that evidence will be a matter of record. I will preside over the trial expecting that all expert witnesses will be doing their best to assist the Court in this way. They can all expect to have their evidence carefully considered on that basis.

[6]	I did criticise the approach Ms Biggs’ accountant took earlier in these proceedings. The Court of Appeal said those criticisms were understandable. They are however now in the past. The weight to be given to his opinion as to the issues at

trial will require me to consider those opinions against all the evidence now available. How the parties went about obtaining discovery in the past is unlikely to be of relevance at trial.

[7]	My duty at trial will be to assess the position of all parties according to the relevant legal principles, as established by legislation and through case law. In doing that, I will be considering all the evidence presented at trial substantively for the first time. Some of that evidence will have been the subject of affidavits filed earlier in the proceedings. My ability to consider all the evidence afresh will be made easier through the time that has passed since I made decisions on interlocutory applications at earlier stages of the proceedings and also because, for the first time, I will hear cross- examination of witnesses as to their affidavits.

[8]	At para 6 and 8 of her affidavit, Ms Biggs referred to comments in my judgment of 19 May 2020. The comments were not intended to be, and were not in fact, observations as to the merits of any party’s position as to the claims she is making in these proceedings. They simply recorded, in a summary and general way, the claims she was making as to the increase in wealth recorded as being in Mr Biggs’ name or through Trusts with which he was connected.

[9]	In my judgment refusing the adjournment, I noted the parties will be giving evidence personally as to a significant issue at trial, the nature of their relationship and the particular contributions made during that relationship. What determinations I come to over this and how they affect ultimate entitlements are matters for trial. They are not matters on which I could or have made any determination. It has not been difficult to avoid making a determination given the strong advocacy of senior counsel in support of each party’s position and the fact that witnesses’ evidence has not been tested through cross-examination.

[10]	The conclusions and determinations I make in my judgment will have to be explained with reasons. Whatever I decide will obviously be subject to the intense scrutiny of the parties and their advisers but also, if any party so wishes, also the Court of Appeal.

[11]	I have had careful regard to the recusal guidelines for the High Court published by the Chief High Court Judge, pursuant to s 171 Senior Courts Act 2016.

[12]	Of importance on this application are the principles:

1.1	A judge has an obligation to sit on any case allocated to him or her unless 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 reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

[13]	Matters specifically mentioned in the recusal guidelines relevant to this application are:

1.5.1	A judge should apply the … principles firmly and fairly and not accede too readily to suggestions of bias.

1.5.2	A judge should be mindful of the burden that passes to other judges if the judge recuses him or herself unnecessarily. (I am mindful of this given this application has been made at such a late stage as to a trial for which three weeks hearing time has been allocated, where recusal would likely necessitate an adjournment of the trial.)

1.5.3	A judge is not required to recuse him or herself merely because … the judge has previously dealt with the case.

…

5.2 An expression of opinion in an earlier case or in an earlier stage of a proceeding is not of itself a ground for recusal.

[14]	I am not aware of any matter that will impair my ability to determine trial issues fairly and impartially on the evidence presented at trial but with due regard to the submissions from counsel for all parties.

[15]	There is no reason why I will be unable to fulfil the obligations I have in accordance with my judicial oath in presiding over the forthcoming trial. I do not consider the circumstances Ms Biggs’ has adverted to would cause a fair-minded, fully informed observer to have a reasonable apprehension that I might not bring an impartial mind to the resolution of the questions I will be required to decide.

[16]	I am not recusing myself and will be the presiding Judge when the trial begins on 22 June 2020.

Solicitors:
DAT Chambers QC, Barrister, Auckland MJ McCartney QC, Barrister, Auckland JF Anderson QC, Barrister, Auckland
EM Eggleston, Barrister, Tauranga City Law, Auckland.

This judgment was delivered by me on 15 June 2020 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 15 June 2020.