O'War Station Ltd v Auckland CC (Judgement No.1)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Steyn |
| Judgment Date | 29 May 2002 |
| Neutral Citation | [2002] UKPC 28 |
| Court | Privy Council |
| Docket Number | Appeal No. 21 of 2001 |
| Date | 29 May 2002 |
[2002] UKPC 28
Present at the hearing:-
Lord Steyn
Lord Mackay of Clashfern
Lord Millett
Lord Phillips of Worth Matravers
Lord Scott of Foscote
Privy Council
[Delivered by Lord Steyn]
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.
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.
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.
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.
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.
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:
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