This page created 25 June 2002 / last modified 26 June 2002

Stony Batter - Waiheke Island

Stony Batter Dispute Over

A 19-year dispute between the Auckland City Council and a Waiheke Island landowner has ended with a ruling from the Privy Council. This follows earlier rulings in favour of the Council by the High Court and Court of Appeal.

Landowner John Spencer disputed that Eastern End Road over his property was a public road and he refused access for visitors to the historic Stony Batter gun emplacements and tunnels. Mr. Spencer claimed that as the roads were not shown on his certificates of title, they remained his property. The Council's case depended on the principle of implied dedication of the roads by previous land owners. The Courts agreed with the Council's case.

See PANZ's road dedication guide

Earlier News Media Coverage

Waiheke Island troubles

New Zealand Herald, January 11, 1993--
"...Loop Road is part of the tourist route running around the Hauraki Gulf island. The section that runs through Mr. Spencer's farm contains one of the most popular spots, the historic gun emplacements of Stony Batter.

Loop Road was built during the 1970s with the co-operation of local landowners. It was intended to be vested in public ownership but this process was not completed when Mr. Spencer bought the 650ha surrounding Stony Batter in 1980.

Discussions began amicably but became heated as Mr. Spencer made changes to the road. In 1986 he buried the road along Man O'War Bay, south of Stony Batter, and built a new road further inland away from his house. The then Waiheke County Council rebuilt the old road with a bulldozer.

The Auckland City Council, which has taken over the administration of the island, has challenged Mr. Spencer's roadblock with an appeal to the Planning Tribunal. The council claims that Mr. Spencer does not have the right to block the road. A separate High Court decision is expected to settle the ownership of the road."

New Zealand Herald, January 13, 1993--

Police warn public to leave roadblock

"Police legal experts say Waiheke Islanders do not have the right to try to unblock a disputed road near Man O'War Bay.

Inspector Kevin Glubb, of the Auckland regional police legal section, said yesterday that residents who attempted to dig away a large earth mound cutting off Loop Road ran the risk of being arrested for trespass.

Land title searches indicated that the millionaire businessman and landowner Mr. John Spencer has acted within the law in bulldozing the mound to prevent vehicular access.

"From the documentation, we believe that the land in question belongs to the company registered on the title, and the owner therefore had rights in relation to that land." On that basis, Mr. Spencer would be entitled to lay a complaint of trespass against protesters who took to the blockade with shovels and spades. "If the protesters are determined to remove the mound then we may be called in," said Mr. Glubb.

However, an easement governing pedestrian access meant members of the public could walk along the road to reach the historic Stony Batter gun emplacements and other crown land. The easement, granted in 1984, made no provision for vehicles.

But in spite of the police legal opinion, some aggrieved Waiheke residents have not ruled out the possibility of further efforts to clear the road.

One resident, Mr. Chris Brady, said last night: "There are some angry people on the island who may well want to try again to dig up the mound."

A "big dig" last weekend resulted in one man being arrested for allegedly driving his four-wheel-drive vehicle over the levelled mound.

The blockade was bulldozed back to its original size on Sunday.

Residents will converge on the mound at Cactus Bay this Saturday and walk to Man O'War Bay for a picnic and family activities.

Mr. Brady said several hundred people were likely to take part in the "great Waiheke land march," intended to "reclaim" the controversial road and bring its importance to the attention of as many islanders as possible."

Otago Daily Times, January 18, 1993

Protesters arrested

"Two men were arrested on Saturday during a good-natured protest march on Waiheke Island, near Auckland.

The two residents were trying to remove an earth mound from a road near Man O'War Bay. Police warned the pair several times before they were arrested and charged with trespass. They will appear in the Auckland District Court today.
The mound had been bulldozed into place in September on the orders of multi-millionaire businessman Mr. John Spencer, who owns the surrounding farmland."

Letter to the New Zealand Herald, 25 June 2002

Full marks to the Auckland City Council for a 19 year battle to secure public road access to Stony Batter on Waiheke Island (Herald 19 June). It is rare to see a local authority so steadfast an advocate for the public interest.

However the reported statement that "the council says this means Mr. Spencer must let the public cross his property" defies the Court rulings. The Courts held that the roads in question are public roads, the ownership of which is vested in the Council. The roads were never part of Mr. Spencer's property. The public had and retain the right of unhindered passage at all times. This challenges the legality of Police action to arrest and charge protesters with trespass back in 1993.

Bruce Mason
Public Access New Zealand Inc.

PANZ 1993

For a colourful account of the dispute visit this site

DOC information on the Stony Batter Historic Reserve (note: info on access is out of date)

Case Law Directory

Privy Council decision delivered 29 May 2002
Court of Appeal decision delivered 27 November 2000
Court of Appeal decision delivered 11 April 2000
High Court oral judgement 31 July 1998
High Court decision delivered 19 August 1997

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
---------------

REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL, OF THE
7th May 2002, Delivered the 29th May 2002
------------------

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]
------------------

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.

Source:

Court of Appeal of New Zealand

Man O'War STATION LIMITED v HURUHE STATION LIMITED & ORS [2000] NZCA
268 (11 April 2000)

IN THE court of appeal of new zealand ca245/98

between Man O'War station limited

First Appellant

AND huruhe station limited
Second Appellant

and auckland city council (formerly WAIHEKE COUNTY COUNCIL)
First Respondent

AND the attorney-general
Second Respondent

Hearing: 8, 9 and 13 March 2000

Coram: Gault J

Henry J

Keith J

Blanchard J

Tipping J

Appearances:R J Craddock QC, M A Muir and G M Macmillan for Appellant

A R Galbraith QC, R D C Hindle, A J Bull and J Anderson for
First Respondent

J A L Oliver and E F FitzGerald for Second Respondent (leave
to withdraw)

Judgment: 11 April 2000

judgment of the court delivered by blanchard j

Introduction

[1] In 1970 the Waiheke County Council ("the Council") was in the process of
constructing a road around the eastern end of Waiheke Island in the Hauraki
Gulf, near Auckland. That project had been anticipated for many years and was
well known to inhabitants of the island. By 1970 the road had been
constructed as far as Carey's Bay on the northern coast. The next farm which
the road would have to cross was owned by Mr Arthur Hooks. For a little
distance into the farm there was a Crown Grant road but it existed on paper
only. There were other paper roads within the boundaries of the farm but they
did not extend right across it and, because of the topography, they were for
the most part unsuitable for the purpose of actually constructing roading.

[2] This appeal concerns the status of roads constructed by the Council in
1971-72 over Mr Hooks' farm. Anderson J, who tried the case in the High Court
at Auckland, referred to the route taken by the principal road constructed
by the Council through the farm as "a ragged loop about 7. 9km long from the
vicinity of Carey's Bay in the north to Man O'War Bay in the south". At
Man [<<]O'War Bay it passed around the Hooks homestead and an
estuary before reaching the shore, and then along a paper road on the
beachfront. From there it followed the paper road inland towards the west
before deviating away from it to the south western boundary. We will call
this principal road from Carey's Bay to the south-west boundary "the loop
road. "

[3] Mr Hooks was an elderly man. He suffered a stroke in July 1970 and was
taken to hospital in Auckland and then to a nursing home in Devonport where
he spent the rest of his life. He died in 1981 never having been able to
return to the island and to his farm which, during the 1970s was managed for
him, somewhat reluctantly, by his son, John.

[4] To the east of the Hooks farm was a property known as Waiti Station
owned by Dr Jeffcoat Harbutt. Situated within Waiti Station was a defence
reserve known as Stony Batter where there were the remains of long disused
Second World War gun emplacements. A rough track known as the Old Army Road
ran up the Hooks property from Man O' War Bay and then turned east
for some 2km to Stony Batter. The Crown had an easement over the Hooks farm
and Waiti Station for the purpose of gaining access to Stony Batter. The Old
Army Road mostly followed the line of the easement but departed slightly
from it at some points.

[5] The point where the Old Army Road turned eastwards is about half way
along the loop road constructed by the Council which from that point
southwards to Man O' War Bay for the most part also follows the line
of the easement. The Council in 1971 constructed a spur road to Stony Batter,
again following the easement. Dr Harbutt's evidence was that he was very
willing to have the spur road built on his land.

[6] The roads began to be used by the public when construction was finished
in 1972. Title to the Hooks farm was under the Land Transfer Act
1952. Although legalisation plans were prepared by Harrison and Grierson and
Partners, a firm of engineers and surveyors, and they were sent to Mr Hooks'
solicitor, Mr J T Sheffield, in 1975, the Council did not go through the
formalities necessary to register any acquisition of the land on which the
roads had been built. The register accordingly did not reveal the presence of
any roads other than the Crown Grant roads.

[7] Mr Hooks had been befriended by Mr JB Spencer who visited him many times
in the nursing home. They often discussed the farm, which Mr Spencer was
eager to acquire. In November 1979 Mr Hooks agreed to sell it to a company
nominated by Mr Spencer, the first appellant, Man O' War Station
Ltd. The agreement said nothing about the roads.

[8] In 1973 Dr Harbutt sold the relevant part of Waiti Station to Mr Gary
Beer. In February 1980 another of Mr Spencer's companies, Huruhe Station
Ltd, the second appellant, bought Mr Beer's land. Again nothing was said
about the roads although Mr Beer does appear to have been aware of the
arrangements made between the Council and Dr Harbutt and to have regarded
the roads as public.

[9] Both companies were acting at all times through the agency of Mr
Spencer. Transfers to them were registered under the Land Transfer Act in
June and July 1980. Mr Spencer endeavoured to negotiate with the Council
about certain aspects of the roads through the properties but when those
negotiations failed he thereafter took the stance that, although the Council
had spent substantial amounts of public money on the roads, including
subsidies from central government, and they had been in use by the public
for some eight years or more, the Council had not acquired any title. He
claimed the protection of indefeasible registered title and attempted
physically to close the roads with gates. He said they were the means by
which people were coming onto his farm and butchering his stock. For some
years the Council and the Auckland City Council ("the respondent"), which in
1989 succeeded to the rights and obligations of the Waiheke County Council,
attempted to keep the roads open and encouraged people to use them. In 1992
Mr Spencer won this battle by placing mounds of soil across the loop road at
the Carey's Bay end and near Man O' War Bay. The loop road and the
spur road then ceased to be used by the public other than on foot.

[10] All this has been a matter of considerable public controversy on the
island and in Auckland generally, with Mr Spencer cast in the role of the
villain of the piece. A particular grievance of many citizens of Waiheke,
additional to the loss of the loop road, has been the blocking of the
vehicular access to Stony Batter.

[11] The Council brought this proceeding against Mr Spencer and his
companies as long ago as 1983. It claimed that the events which had occurred
prior to their acquisition of the properties had given rise to a dedication
of the loop road and the spur road. Mr Spencer denied this and relied upon
the land transfer titles. His companies counterclaimed for $741,016 special
damages, $250,000 general damages and $250,000 exemplary damages for
trespass by the Council and its successor and for its encouragement of
trespass by members of the public in the use of the roads. The claim for
$741,016 relates to stock losses and diminution of farming income.

[12] It was not until September 1996 that the case came to trial before
Anderson J. He delivered a reserved judgment on 19 August 1997 and a
supplementary oral judgment after a further hearing on 31 July 1998. Both
judgments are now appealed.

The High Court judgments

[13] Anderson J found that by 1975 there had been an implied dedication of
most of the roads formed on the Hooks/ Man O' War land. There had been
an agreement reached between the County Chairman, Mr McIntosh, and Mr Hooks
and his solicitor, Mr Sheffield, in September 1970, confirmed by a letter to
the Council from Mr Sheffield on 23 September 1970. There was an implied
dedication when roads were subsequently constructed and came into use by the
public. The doctrine of implied dedication applied notwithstanding the land
transfer title. Section 77 of the Land Transfer Act created in favour of the
Council an exception to the indefeasibility provisions of that Act (ss62,
63, 182 and 183), so that registration of the transfer in favour of [<<]Man
O'War had not defeated the legal title which the Council held under s316
of the Local Government Act 1974, notwithstanding that the memorandum of
transfer purported to include the land on which the roads had been
constructed. Section 77 reads:

77. No right to public road or reserve where unauthorised registration-

No right to any public road or reserve shall be acquired, or be deemed to
have been acquired, by the unauthorised inclusion thereof in any certificate
of title or by the registration of any instrument purporting to deal
therewith otherwise than as authorised by law.

[14] But Anderson J found that a small section of roadway at the south-west
of the Hooks/ Man O' War property had not been impliedly dedicated
because there the construction was supposed to have followed the line of the
legal but unformed Crown Grant road and had not done so. This section of road
construction in respect of which the respondent's claim failed has been
called the "south-west deviation".

[15] The claim also failed in relation to the Huruhe land (the balance of
the spur road) because, although the registered proprietor in 1970-71, Dr
Harbutt, was very agreeable to the construction of roads over his property,
there had again been no formalisation and, unlike Mr Hooks, he had a
mortgagee whose consent had not been obtained. Mr Beer had never been
approached by the Council. Therefore there could be no implied
dedication. (This is not now disputed. This appeal accordingly relates, so far
as questions of title are concerned, only to the Hooks/ Man O'War
land. )

[16] Lest its other arguments based on exceptions to indefeasibility should
fail, the respondent also sought to prove that registration of the transfer
to the Spencer companies was affected by land transfer fraud on the part of
Mr Spencer - that he must have known or be taken to have known of the
Council's title to the roads when he registered the transfers. Anderson J,
though plainly troubled by the morality of Mr Spencer's position and
describing his evidence as "almost disingenuous," concluded that there was
no such fraud - that Mr Spencer had believed when registering the transfers
that the Council had no enforceable rights.

[17] Since the Judge had found that the loop road, as constructed, was a
dedicated road, apart from the south-west deviation, it followed that the
Council and others using it until 1992 were not trespassers. But [<<]Man
O'War and Huruhe were held to be entitled to damages of $10,000 and
$5,000 respectively for trespass on the south-west deviation and the spur
road on the Huruhe property. (The respondent does not now dispute the award
in favour of Huruhe. )

[18] The supplementary judgment primarily related to the width of the road.
The Judge held that the understanding of both the Council and Mr Hooks was
that it was to be the minimum legal width of 66 feet and that there was an
implied dedication of a road of that width.

[19] In this appeal Man O' War seeks to have set aside the High
Court's finding that the loop road has been dedicated and also argues that,
even if dedication did occur in the 1970s, it obtained an indefeasible title
upon registration in 1980, thereby defeating any rights of the Council. In
the event that either of those arguments succeeds, both appellant companies
seek to have the damages awards substantially increased.

[20] In a cross-appeal the respondent council argues that the Judge was
wrong to reject its claim that the south-west deviation became dedicated
along with the rest of the loop road. It has also renewed its hitherto
unsuccessful argument that Mr Spencer was guilty of land transfer fraud,
although that can now be relevant only to the Man O'War land.

[21] Before beginning a more detailed account mention can be made of a
difficulty which beset the trial. With the exception of Mr Sheffield and the
Council's surveyor, Mr Ian Grierson, those directly involved in the crucial
events had died or, in the case of Arthur Hooks' son, John, who ran the farm
in the 1970s, could not be located. Dr Harbutt's signed brief of evidence was
admitted by consent and he was not required to be called for
cross-examination.

Title to roads and the doctrine of implied dedication

[22] The central issue is whether, in certain arrangements made with the
Council in 1970, Arthur Hooks agreed to the construction of the loop road
and the section of the spur road on his land and had the necessary animus
dedicandi so that, when those roads were actually constructed and used, they
became public roads. Until 1 January 1973 all land becoming road was vested
in the Crown (s111 Public Works Act 1928). From that date, with certain
exceptions of no present relevance, roads were vested in fee simple in the
local authority under s191A Counties Act 1956 and, from 1 April 1979, under
s316 Local Government Act 1974. Despite the vesting in the local authority
the right of passage over a road is one possessed by the public, not the
local authority, which holds its title and exercises its powers in relation
to a road as upon a trust for a public purpose (Fuller v MacLeod [1981] 1
NZLR 390, 414).

[23] In modern times dedication as road of land in private ownership usually
occurs by means of an agreement in writing with the local authority or by a
compulsory taking, in either case under the Public Works Act. It is
implemented by registration under the Land Transfer Act. Less commonly, it is
effected merely by execution and registration of a transfer by way of
dedication signed by the landowner and the local authority. But the common
law has long recognised that dedication can occur by the conduct of the
landowner in allowing passage by the public over an area of his or her land
with the intention that such user be permanent; that the area be dedicated
to that public use. The land becomes a road by this means when the owner
evinces the requisite intention (animus dedicandi) and there is an
acceptance by or on behalf of the public. The position is stated in the
following way in 21 Halsbury's Laws of England 4ed, para 65, in a passage
referred to by the trial Judge:

A road or other way becomes a highway by reason of the dedication of the
right of passage to the public by the owner of the soil and of an
acceptance, that is user, of the right by the public. `Dedication' means
that the owner of the soil has either said in so many words, or so conducted
himself as to lead the public to infer that he meant to say, that he was
willing that the public should have this right of passage. From the moment
that a dedicated way has been accepted by the public there is a right of
passage by the public.

[24] Once an intended dedication has been accepted by the public a public
right of way, a highway, comes into existence and the landowner can no
longer deny to the public what has been dedicated - once a highway always a
highway (Permanent Trustee Co of New South Wales Ltd v Campbelltown
Corporation (1960) 105 CLR 401, 422 per Windeyer J). A declared intention to
dedicate is ripened into dedication by public user of the land as a road, or
by a public body having authority to take it over on behalf of the public
doing so, by, for example, spending money in forming or maintaining it as a
road (Permanent Trustee v Campbelltown Corporation at 422).

[25] However, without a present and unconditional intention to dedicate on
the part of the landowner no act of user or other purported acceptance, such
as construction of a road, can give rise to an implied dedication. In some
instances while a landowner may be willing to see the land become road he or
she may be taken to have stipulated that this shall not occur unless a
particular procedure has been followed, usually to preserve a right to
compensation (as in Stewart v Wairoa County Council (1908) 28 NZLR 178). In
the absence of an agreement or declaration to the contrary, it is not to be
assumed that a landowner intended to forgo compensation even in
circumstances in which there appears to be some benefit to his or her
residual land from the presence of a road.

The Council's dealings with Mr Hooks

[26] As has been mentioned, for many years before 1970 there had been a
desire on the part of the Council and its predecessor to construct a road
right around the eastern side of the island with the help of a generous
government subsidy (from the Backblocks Roading Fund). From 1960 to 1968 the
construction of that road had progressed towards the north-western corner of
the Hooks farm.

[27] The Judge said that Mr Hooks was indifferent towards it. Although he was
elderly, born before 1900, he was sturdily independent and seemingly content
to have his property serviced by sea. But, as the evidence about his purchase
of a car suggests, he was far from immune against the attractions of road
access to and through his farm. Mr Harris, a grandson, said he was sure the
purchase of the car took place before his uncle, John Hooks, went down to
the property.

[28] Arthur Hooks was evidently on good terms with Mr McIntosh, the County
Chairman. There was a meeting between them in March 1970, as appears from the
following letter of 26 March 1970 written by Mr Sheffield to the Council:

We act for Mr. A. Hooks who has referred to us your proposals to extend your
existing road through his property.

To enable us to advise Mr. Hooks, would you please let us have full details
of what your proposals are and the approximate timing of these. We understand
from Mr. Hooks that you are considering extending the present road to
Man O' War Bay but that long term you also contemplate continuing the
existing road to the west of Mr Hooks' property to the land at present being
developed by the Maori Affairs Department. Would you please confirm this.

We return the notes which you left with Mr. Hooks when you discussed the
matter with him earlier in the week.

[29] A response from the Council on 3 April 1970 mentions that construction
had already occurred on the Crown Grant road within the Hooks property at
the Carey's Bay end. The Council's letter said:

The completion of the loop road along the ridge to link up with part of the
old "Army" road and in part with a public road to Man O'War Bay and
from there to the "Scott Block" [Maori Affairs] is planned. It is hoped to
complete the construction to Man O'War Bay this coming construction
year and to complete the whole loop road within three years.

At the time of the construction of the road to Man O'War Bay it is
intended to reconstruct a further ? mile of the "Army" road to give access
to the boundary of Waiti Station owned by Dr Jefcoate [sic] Harbutt. Dr
Harbutt is very anxious to get access to his property.

As you will be aware the Council has ample powers under the Public Works Act
to take the land required but it prefers to negotiate whenever possible.

The majority of owners of properties through which the road has already
passed agreed to give the land free of cost on condition that the Council
pay all associated costs such as survey fees, transfers etc. and the Council
in turn agreed to fence both sides of the road at some future time. Fencing
is a major item and one which must be financed out of revenue so no promise
can be made as to when fencing could be completed.

A property owner is responsible for the fencing of a legal road and there is
a considerable length of legal road in Mr Hooks property, some of which is
already formed. However, in accordance with past policy, I am sure that the
Council would agree to accept responsibility for the fencing of the whole
road if expensive legal action to obtain the land can be avoided.

[30] The County Clerk wrote on 14 May 1970 advising Mr Hooks that Harrison
and Grierson and Partners had in accordance with s107 of the Public Works
Act 1928 been authorised to commence a survey of the road. It was hoped that
an agreement could be arrived at in the near future. Mr Hooks replied on 14
June asking if the surveyors would have a Court order. He raised objection to
the "cutting of my boundary, and machinery working on my land without my
knowledge". It seems that this protest related to work on the paper road at
the Carey's Bay end. It shows that when work was done without his approval
Mr Hooks was not backward in making his feelings known. The Council replied
saying that no Court order was required and that the surveyors would produce
an authority.

[31] On 11 July 1970 Mr Hooks suffered a stroke and was taken to hospital in
Auckland. When he was sufficiently recovered he went to the nursing home in
Devonport. He never went back to Waiheke although until his sale to Man
O'War he expressed hope that he might do so. That was never going to be
able to happen without road access. The evidence confirms that his mind was
unaffected by the stroke and it is impossible to believe that he did not
continue to take a keen interest in his farm, and that he did not keep
himself informed, through John Hooks, about significant events relating to
it, including progress on the Council's roading project. Anderson J came to
this conclusion and it is unconvincing for the appellants to suggest that it
was not open to him to do so.

[32] A crucial meeting took place at the nursing home on 21 September 1970
which the Council relies on to prove an intention to dedicate. A letter from
Mr Sheffield to the Council two days later confirms what was agreed:

Referring to the conference held between Mr. McIntosh, ourselves and Mr.
Hooks on the 21st September, we confirm that Mr Hooks in general principle
is prepared to transfer to the Waiheke County Council the land required by
them for road purposes through his property on the following conditions:-

(a) The Waiheke County Council will arrange for him some dedicated road
access to Thumb Point. Mr. Hooks accepts that this road will not be a formed
road.

(b) Mr. Hooks will have transferred to him from the Lands & Survey
Department such of the Crown grant roads that appear on the title deeds to
his property as are not required by the County Council for road purposes.

(c) The route of the road will be substantially that shown as Route B on
your plan No. WH. 130 prepared by Messrs. Harrison & Grierson. You will recall
that this route takes the road near Man O' War Bay well away from
Mr. Hooks' residence and woolshed. Mr. Hooks is particularly anxious that the
road does not go anywhere near his present dwellinghouse as he wishes to
ensure to himself and his family all possible privacy in this regard.

(d) If the course of the road interferes with Mr. Hooks' holding paddocks,
these holding paddocks are to be refenced at the cost of the County.

(e) All fencing of the new roads will in due course be carried out by and at
the expense of the Waiheke County Council. Mr. Hooks recognises that this
fencing programme will have to be deferred until such time as the County
Council has the funds necessary to proceed. Mr. Hooks understands however
from his discussions with Mr. McIntosh that some immediate progress can be
made with this fencing of the road from Carey's property on. Mr. Hooks also
understands that a gate will be erected at the end of the road as far as the
fencing proceeds and that a lock will be placed on this gate although he
recognizes that the County Council has no legal right to insist that the
gate be locked.

(f) Some suitable notice, the wording of which will be agreed with Mr.
Hooks, shall be placed at the entrance of Mr. Hooks' property drawing the
attention of persons using the road to the fact that the land on either side
is private property and the public cannot leave the road without the consent
of the owner.

We should be pleased if you would let us have in due course whatever formal
agreement is necessary to evidence the above arrangement.

(Thumb Point was an adjacent block to the north of both the Hooks farm and
Waiti Station. It was owned by Mr Hooks and a brother. )

[33] The County Clerk responded immediately by letter of 24 September noting
the contents of Mr Sheffield's letter and formally confirming them. "The
necessary plans etc will be prepared and consent forms forwarded as soon as
possible. "

[34] We agree with the following finding made by the Judge in relation to
what occurred at the meeting in September 1970:

I am, however, entirely satisfied that the meeting of 21 September 1970
discussed the matter of forming and dedicating a road coincident with the
access easement, the Old Army Road, which had become Crown land by virtue of
a Ministerial declaration pursuant to the Public Works Act 1928, gazetted on
29 February 1968. I am sure Arthur Hooks agreed to a road being formed and
dedicated up to the boundary of Waiti Station, in order to provide access
for that property, and that Mr McIntosh, on behalf of the Council, agreed to
the dedication of a road from the Waiti Station portion of the road up to
the boundary of the Thumb Point land in which Mr Hooks retained an interest.

That finding is consistent with condition (a). It was very unlikely that
access to Thumb Point would be by any route other than along the Old Army
Road and through Stony Batter. The Council wrote to Dr Harbutt on 9 October
1970 telling him that Mr Hooks was agreeable to dedication of a road to the
boundary on condition that Dr Harbutt "consent to the road continuing
through your property to the Thumb Point boundary". Dr Harbutt's unchallenged
statement was the he "gave the requested consents".

[35] Construction of roading within the Hooks property on the paper road
began late in November or in December 1970 from the Carey's Bay end and
continued on to the farm and down to the intended junction of the spur
road. As had been agreed with Mr Hooks even before the September meeting, and
to meet his specific wishes, the route was kept off the ridge line so that
travellers would not see and be attracted by beaches on his farm. The spur
road was the next to be built before the loop road construction carried on
to Man O' War Bay using Route B around the estuary as it approached
the bay. There was some debate, which will be referred to shortly, about the
proposed line of construction at the bay south from the point at which Route
B met the foreshore, where the Crown Grant road already ran along the
foreshore. Construction from the southern end of Man O' War Bay down
the paper road to the point where the south-west deviation began and then to
the south-west boundary was done in the winter of 1971, according to the
evidence of the man who did the work, Mr Wilkinson.

[36] Mr McIntosh kept in touch with Mr Hooks in his nursing home. A letter
from the County Clerk to John Hooks of 11 January 1971 begins:

Mr McIntosh has informed me that he called to see your Father before
Christmas with reference to the Council using any suitable metal from your
property for the Eastern End Roading.

[37] It refers to the terms of an agreement reached about the metal. The
County Clerk also mentions the ordering of the notices (condition (f)) which
"will be erected as soon as any work on the fencing through the locked [farm
boundary] gate is commenced". Mr McIntosh had a meeting with Mr Hooks at the
beginning of 1972, as appears from a significant exchange of letters between
Mr Sheffield and Mr Grierson. On 28 March 1972 Mr Sheffield wrote as follows:

We act for Mr Arthur Hooks who, approximately 18 months ago, reached
agreement with the Waiheke County Council for the construction of a road
through his property on Waiheke Island. The route of the road was to be that
shown as Route B on your Plan No. WG130. [sic - it was actually WH130]

At the time the Waiheke County Council promised to forward a copy of the
plan to us so we would have a record on our file of the road to which Mr
Hooks had agreed.

We have not so far received a copy of the plan from the Waiheke County
Council and we should be pleased if you would let us have a copy of the plan
for our records in due course.

[38] It is notable that Mr Sheffield twice in this letter refers to an
agreement. We will come back later, when dealing with the south-west
deviation cross-appeal, to what may have prompted Mr Hooks to instruct his
solicitor to write this letter.

[39] A letter followed on 21 June 1972 asking for a reply. In it Mr Sheffield
spoke of the road "which is being constructed". This can be contrasted with
his evidence that he had no appreciation that any work was actually being
done. But there must have been something which made him need the plan
"urgently". Mr Grierson eventually wrote on 20 July 1972. In apologising for
not replying earlier to the letter of 28 May Mr Grierson said that:

At the time the route and its relation to the beach itself was under
discussion between Mr Hooks and the County Chairman and our present
instructions are that the route should follow the legal road along the beach
in as much as this is possible although to date there is a gap in
construction between the existing 48" diameter culvert and the Crown grant
road shown as not formed on Sheet 2. This is a distance of some 20
chains. From the position shown "Crown grant road not formed" the road has
now been constructed southwards up to and through the boundary between
Hook's [sic] and the Maori Affairs properties.

It is our own view (but not necessarily that of Council or Mr Hooks) that it
would be unfortunate for the road to be constructed along the beach
frontage. This would undoubtedly spoil the beach's attractiveness. [Emphasis
added]

(The map in question - WH130 Sheet 2 - is marked "existing 48" dia culvert"
where Route B goes around the estuary at a point within about 60 feet of
where it meets the paper road along the foreshore. There is another marking
"C. G. Road not formed" about the same distance up the paper road running
from the foreshore in a westerly direction. )

[40] Three points can be made. First, that in March 1972 Mr Hooks had been
having discussions with Mr McIntosh about the proposed path of the road (not
yet constructed) along the Man O' War Bay beachfront. It is very
unlikely that any such discussion would have occurred without Mr Hooks
appreciating the extent of construction already undertaken from Carey's Bay
to Man O' War Bay. Second, the letter tells Mr Sheffield that there
is a "gap in construction", that is, that there has been construction as far
as Man O' War Bay. Third, there is a direct statement that from
Man O' War Bay there has been construction southwards to the
boundary. In his evidence Mr Sheffield, attempting to recollect events
25 years earlier, said that the concern of his client was with the line of
the surveying but this is contradicted by the letter which speaks of
construction. From his evidence, and from the letter he wrote to Mr Spencer
on 13 May 1980, it appears that despite the clear terms of Mr Grierson's
letter Mr Sheffield either failed to appreciate that construction had
occurred or later had no recollection of it. But he would surely have copied
this letter to Mr Hooks or at least told him what it said, and the reference
to construction is unambiguous. Significantly, there is no sign of any
consequential protest of the kind we know Mr Hooks was capable of, not even
relating to the proposed construction to fill the "gap" along the legal road
on the beachfront.

[41] Anderson J's judgment records that finishing work continued over the
next two years in relation to metalling and construction of cattle-stops.

[42] There was no further correspondence with Mr Sheffield until Mr Grierson
wrote on 14 February 1975 sending legalisation plans. He also said:

A condition of Mr Hooks consent was that the road be extended through the
adjoining land to meet his boundary again near Hooks Bay [Thumb Point]. A
copy of this plan is also enclosed to show that this has been actioned.

[43] And, dealing with formalisation:

Subject to check by the Lands & Survey Dept. the area of land to be taken
for road is 36 acres 1 rood 35. 7 perches and the area of existing legal
(unformed) road to be closed and transferred to Mr Hooks is 12 acres 1 rood
9. 8 perches. Of the 36 acres to be taken approximately 13? acres is already
subject to a Crown right of way (which will extinguish with legalisation
over the part involved) and is known as the old Army road.

The closing of the legal (unformed) roads would meet condition (b) (see para
[32]). There was a recognised procedure for closing such roads and vesting
them in the owner of surrounding land. The survey plans necessary to achieve
this were approved by the Chief Surveyor in May 1979.

[44] On 2 May 1975 Mr Grierson again wrote to Mr Sheffield's firm concerning
how Mr Hooks might obtain a separate title to an area of his land which was
less than 10 acres. He suggested the form of a letter of application to the
Council for consent to subdivision. Although Mr Grierson appears to have had
a personal interest in acquiring the new lot, it is not suggested, as we
understand the submissions for the appellant, that in doing so he was
misrepresenting the position. Some four months later, and thus after there
was plenty of time to consider the draft letter and to take instructions
from Mr Hooks, a staff solicitor, Mr Roscoe, whom Mr Sheffield recalled as
working under the supervision of the two partners in the firm, wrote to the
Council generally in terms of the draft. The letter contains the following
statement addressed on behalf of Mr Hooks to the Council:

Also Council have obtained his [Hooks'] approval for the passage of the new
road through his land and with this consent no doubt being of considerable
benefit in easing the legalisation procedure.

[45] This was a long time after the road construction was completed and the
road was in use by the public, and it was also after the time when Mr
Sheffield had been sent the legalisation plans including one showing the
route to Thumb Point. Anderson J very reasonably inferred that Mr Roscoe must
have acted on specific instructions from Mr Hooks who at this time,
according to Mr Sheffield, remained well capable of understanding business
matters. (Mr Spencer could hardly deny this, as he later negotiated his
purchase directly with Mr Hooks. )

[46] After having reviewed the evidence, including that pertaining to the
character of Mr Hooks, the Judge said that whatever reservation had been
intended by the references in Mr Sheffield's letter of 23 September 1970 to
"in general principle" and "formal agreement" had long since been displaced
by the carrying out and the clear acceptance and approval of the roadworks,
except for the south-west deviation. Time and events had overtaken, by
September 1975, any intention not to be bound until formal documents should
be executed:

I doubt that such was in fact contemplated by the letter of 23 September
1970, which speaks of "whatever formal agreement is necessary to evidence
the above arrangement". The idea of evidencing an arrangement which has been
reached is essentially different from an intention that only a formal
agreement will be an agreement.

[47] The Judge noted that the parties must have had in mind in September
1970 "the essentiality for the purposes of a dedication pursuant to s32 of
the Public Works Act 1928 and the practical necessity of satisfying the
Minister as to the sufficiency of it".

[48] Anderson J also observed that by September 1975 Mr Hooks had through
his solicitors twice acknowledged in writing that he had agreed or consented
to the road, which was in fact formed and in public use. In his judgment Mr
Hooks could have been specifically ordered to execute a formal agreement.

An implied dedication?

[49] Having studied the evidence, particularly the passages referred to by
counsel, We are satisfied that it was well open to the Judge to make the
finding that by 1975 there had been what the common law would recognise as
an implied dedication. It was also open to him, in particular, to reject, as
he must have done, Mr Spencer's apparently self-serving hearsay evidence of
what he was later told by Mr Hooks. This evidence was contrary to what Mr
Spencer himself said in a letter to Mr Grierson on 7 July 1980, namely that
"I tried to discuss [the roading] with Mr Hooks but he had no recollection
on the subject".

[50] Although Mr Hooks may have initially been indifferent, after his stroke
his attitude seems, very understandably, to have changed. The road had become
his only real hope of getting back to his farm. He reached agreement with the
Council in September 1970 for the creation of roads, including a spur road,
and it would be contrary to common sense to suppose that he did not keep
himself fully informed about the progress of construction which became the
means whereby the actual line of the road would be fixed. It is to be
observed that, with the possible exception of the construction on the Crown
Grant Road at Man O'War Bay, he raised no query about the
route of the roads as actually constructed. He cannot have expected that,
having spent a good deal of public money on construction, including
installation of culverts and cattle-stops and metalling of the surface, the
Council was not to have any rights unless it resorted to the Public Works
Act. We reject the argument advanced for the appellants that Mr Hooks was in
these circumstances entitled to reserve his position and require the Council
to take the land compulsorily.

[51] There was naturally a need eventually to tidy up the land transfer
title and that would require the deposit of a plan and formal documentation
but, contrary to Mr Craddock's QC argument for the appellants, there is
nothing to suggest that Mr Hooks' intention to dedicate was qualified by an
unexpressed stipulation that the Council must acquire title to the land by
formal agreement or by proclamation under the Public Works Act. It was not
even mentioned at the meeting in September 1970, according to Mr Sheffield.
Counsel cited Carruthers v Whitaker [1975] 2 NZLR 667 and Shell Oil New
Zealand Ltd v Wordcom Investments Ltd [1992] 1 NZLR 129 in which the parties
were taken to be intending to follow standard conveyancing practices, but
the factual situations there were vastly different from the present.

[52] The Council may in 1970 have envisaged that there would be an agreement
under s32 of the Public Works Act 1928 and indicated accordingly to Mr
Hooks, but it does not follow that either of them was committed irrevocably
to a transfer of title in that manner regardless of future developments. Mr
Craddock placed much reliance upon the decision of this Court in Stewart v
Wairoa County Council (1908) 28 NZLR 178, which followed the High Court of
Australia in President etc of the Shire of Narracan v Leviston (1906) 3 CLR
846, but in both of those cases the owner was all along expecting to receive
a sum of compensation for the taking of the road. So there was good reason
for the owner to insist upon a procedure which would secure that
compensation. In contrast in the present case, it is not disputed that it had
been agreed from the outset by Mr Hooks that there would be no compensation,
that the land would be given in exchange for the Council's expenditure in
constructing the road and complying with the other agreed conditions. As to
the width of the intended dedication, Mr Sheffield was a knowledgeable and
capable lawyer and would not have been ignorant of the legal requirement for
a 66 foot minimum (s191 (4) Counties Act 1956). He was not asked about this
matter but can be taken to have advised his client accordingly. The Council
does not lay claim to any greater width.

[53] Mr Hooks' lack of appreciation of the consequences in law of what he
had agreed to and permitted to be done on his land explains why he did not
instruct Mr Sheffield to put something about the roads into the agreement
with Mr Spencer's company. As Mr Sheffield was under the impression that no
construction had occurred he did not put his mind to the question of the
existing status of the roads when his client entered into the agreement with
Mr Spencer. He had never visited the farm and was reliant upon what his
client chose to tell him about physical conditions. Mr Sheffield's
expectations, as stated in his evidence, should not therefore be taken to
reflect those of his client.

[54] Mr Craddock also submitted that, assuming implied dedication can occur
in respect of land transfer land and in the face of the requirements of the
Public Works Act, it still could not have happened in this case because of
the existence of interests of third parties in the land, namely an
unregistered electricity easement in favour of the Auckland Electric Power
Board, the defence easement in favour of the Crown (the Old Army Road) and
the Crown's right of ownership of the foreshore at Man O' War Bay. In
our view none of these presented an impediment. The Power Board had
previously signified that, as the owner of easements on land through which
the road round the eastern end of the island was being constructed, it
consented to the creation of that road, which had obvious advantages for the
Board as a means of access to its facilities. It had entered into a deed to
that effect in 1963. Plainly that was meant as a consent with general effect,
even in respect of easements which might come into being after that
time. There was nothing out of the ordinary about the Hooks' easement which
might put it in an exceptional category requiring a specific consent.

[55] Similarly, the Crown was kept aware of what was occurring and raised no
objection. It was actually paying most of the cost of the road construction.
It could hardly object to the vesting of the road in itself, under s111 of
the Public Works Act (see para [22] above). Moreover, the defence easement
had been acquired for particular wartime purposes and was no longer used or
ever again likely to be used for them. Even if the Crown had been unwilling
to relinquish its rights of access it could surely have had no legitimate
objection to accessing the reserve area at Stony Batter along a new Crown
road which very largely followed the course of the Old Army Road. There was
no question of the implied dedication applying to the Crown's ownership of
the foreshore or of any other area at Man O' War Bay, including the
paper road along the beachfront; any changes in such ownership or use were a
matter entirely between the Council and the Crown.

[56] Nor could it have been intended once the road was constructed with the
approval of Mr Hooks, that the passing of title to the Council should be
postponed until fulfilment of all the conditions. It is explicit in the
letter of 23 September 1970 that the condition about fencing would not be
satisfied until the Council had "the funds necessary to proceed". That
strongly suggests that it was anticipated that, although it must be
completed within a reasonable time, the fencing might not be finished until
after the Council would obtain title. Because the parties were implementing
an agreement which was quite capable of being enforced once there was
definition of the area utilised for roading construction (to the minimum
legal width) any subsequent default in respect of a condition, such as those
relating to Thumb Point or to fencing, could be the subject of a damages
claim by Mr Hooks. In fact, except for a period of uncertainty within the
Council caused by changes of personnel, it has always stood ready to fulfil
the remaining conditions, but its performance has since 1980 been frustrated
by the attitude of Mr Spencer. The Council took steps, for example, to obtain
approval from Dr Harbutt to the dedication of the access to Thumb Point. That
can still be achieved. It also carried out substantial amounts of fencing
before the present dispute arose. By early 1971 Council records show that
fencing materials were being transported for "Hooks Road". Mr Philcox said in
his evidence that by around 1977 he had fenced the northern side of the loop
road as far as the junction and part of the southern side, as well as both
sides of the spur road as far as the Waiti Station boundary. A Council Minute
of 17 October 1979 records the chairman advising that "the former Council
had undertaken to provide fencing each year in lieu of compensation for the
road taking of Mr Hooks' property. "Mr Hooks had advised the County Chairman
that the Council had not undertaken any fencing. However, it was proved by
the County Foreman, according to the Minute, that Mr Philcox had done quite
a substantial amount of fencing which concluded in 1977. The Council then
resolved that fencing be erected as required from the cattle-stop on the
beach on the Man O' War Bay foreshore. The Council also indicated a
willingness to allocate funding for further fencing work when a farm advisor
acting on behalf of Mr Spencer made an approach shortly after acquisition of
the properties by his companies.

[57] Mr Craddock referred also to an apparent lack of any agreement on
costs. The parties must be taken to have been agreeable to meeting their own
costs, most of which would fall on the Council as it was to do the surveying
and, in accordance with practice in these matters, could be expected to
prepare the legal documentation.

[58] We are therefore of the view that, unless there is something in the
scheme of the Land Transfer Act militating against the operation of the
doctrine of implied dedication, the Council had by that means acquired title
to the loop road and the portion of the spur road within the Hooks/[<<]Man
O'War property before Mr Hooks agreed to sell it to Man O'War . He
had evinced the necessary animus dedicandi and the Council had by
constructing the roads and opening them to the public accepted the
dedication. Legal title had passed when the roads were completed and in
use. That was achieved in 1972. The Chairman reported to the Council's annual
meeting on 30 October 1972:

For several years we have pushed ahead with the Eastern Loop Roading and it
is now possible to drive to Cowes Bay, straight through to [<<]Man-o-War
Bay and back to Onetangi via Careys although the complete loop is not
recommended for a small car as some final earthworks are to be undertaken
this construction season.

[59] It would thereafter have been too late for Mr Hooks to withdraw his
consent, even if he had not appreciated that his intention had by operation
of law been carried into effect in advance of any process of
formalisation. If the reservations in the letter of 23 September 1970
reflected at that time anything more than the uncertainty about the actual
course of the road and the access to Thumb Point, they were, as Anderson J
found, overtaken by events.

The south-west deviation

[60] Anderson J found in respect of the south-west deviation that Mr Hooks
should not be taken to have consented to the line taken by the construction
and that, although there was plenty of evidence that his son, John Hooks,
had approved that line where it departed from the paper road, John had no
authority to bind his father. The deviation was made because of the
topography. The line of the paper road was hilly, bush clad and entirely
unsuitable for the construction of a road. Therefore Mr Grierson approved a
line of construction which went as close as was practicable to the paper
road (which, in terms of condition (b) would be closed and transferred to Mr
Hooks).

[61] Anderson J seems to have been substantially influenced in his decision
on the south-west deviation by a belief that the exchange of letters in 1972
was caused by Mr Hooks' taking objection to the deviation. But that does not
appear to be the case at all. The concern being raised was about the
construction of the road through Man O' War Bay as can be seen from
the letter from Mr Grierson to Mr Sheffield of 20 July 1972 (para [39]
above). Mr Harris confirmed that his grandfather had intended the road to go
further back from the beach at that point.

[62] Mr Hooks would have understood very well that there might have to be
departures from the route on the plan shown to him in September 1970; that
there had not yet been a survey and that the practicable route would to an
extent be dictated by topography. It is to be noted that condition (c) when
speaking of Route B says that the route of the road is to be "substantially"
that on the plan. This indicates a flexible approach to the roading
generally. Mr Hooks must be taken to have been very familiar with the
topography of his farm, having been there since 1940. He would have
appreciated the difficulty of following the legal road all the way to the
south-west boundary. If, as is highly probable, he kept himself informed
about any significant development - as witness his discussions with Mr
McIntosh about the foreshore - the deviation would certainly have come to
his notice. He appears to have raised no protest concerning it; and, it may
be asked, why would he have done so?The road had to be constructed to the
boundary in order to fulfil its intended function of being part of a road
right round the end of the island. No-one has been able to point to any
disadvantage to the owner from the route which was adopted. Mr Hooks was
understandably much more concerned with the route of the road across [<<]Man
O'War Bay. That was what he discussed with Mr McIntosh and what prompted
Mr Sheffield's request for a copy of the plan. It is worth noting in this
connection what Mr Sheffield said concerning his client's attitude to having
a road through his farm:

I don't think Hooks was necessarily concerned if the road didn't follow
exactly the line that was there but he would need to know and approve of
it. We have to remember too that the road could be quite an advantage to
Hooks as far as his property was concerned and it wasn't as though he was
feeling necessarily that the council were trying to get something out of him
because he would get a benefit from the road too.

[63] We therefore conclude that the Judge erred in finding that there was no
common law dedication of the south-west deviation, but that conclusion is
again subject to the general question of whether the doctrine of implied
dedication can still operate in New Zealand, particularly in respect of land
with a registered title, to which we now turn.

Implied dedication, the Land Transfer Act and other statutes

[64] The appellants submitted that (a) the doctrine of implied dedication is
inconsistent with the general scheme of the Land Transfer Act and (b) is
particularly precluded by the provisions of s64, as well as (c) being
rendered obsolete by express provisions in the Public Works Act governing
dedication. In support of (a) they say, correctly, that the Torrens system
is one of title by registration, not registration of title; and that the
register is everything and registration confers an indefeasible title,
subject to certain express statutory exceptions, including that for
fraud. They submit that those dealing with a registered proprietor, as the
Spencer companies did as purchasers, must be able to rely on what is shown
on the register as an accurate picture of the current state of title without
having to investigate the history of that title, and that title can be
vested or divested only by the act of the District Land Registrar. They say
that if a legal road can be created by an implied dedication a person
dealing on the faith of what appears on the register may be seriously
misled. Dedication may have occurred long ago by this means but never have
been formalised and the road may have ceased to be used so that there is no
warning indicated to a purchaser.

[65] In our view there is no such incompatibility between the Land Transfer
Act and the concept of implied dedication. The Act itself does not expressly
abrogate the common law rule. Indeed corresponding statutes in several
Australian States expressly recognise an exception for public rights of way
without any need for consequential adjustments to provisions which are found
in all the Australasian jurisdictions, including New Zealand. In the Transfer
of Land Act 1958 (Vic) s42(2), the Transfer of Land Act 1893 (WA) s68(3) and
the Land Titles Act 1980 (Tas. ) s40(3) the estate or interest of a
registered proprietor is made subject to any public right of way. That
includes a highway (see para [24] above). Section 86 of the Real Property Act
1886 (SA) is in these terms:

Rights-of-way or other easements now or hereafter acquired or enjoyed by the
public in, over, along, or across any servient land shall not be deemed to
be rights-of-way or easements within the meaning of this Part of this Act,
or in respect of which applications may be made or caveats entered, and
nothing herein contained shall derogate from any such rights or easements,
or be deemed to confer on the registered proprietor of any such servient
land a right to interfere with or obstruct the public use of any way or
other easement so acquired or enjoyed as aforesaid.

[66] It is well established in the two States where Torrens statutes do not
make express reference to public rights of way, New South Wales and
Queensland, that such rights enjoy the benefit of an implied exception to
the indefeasibility of a registered interest. In Vickery v Municipality of
Strathfield (1911) 11 SR (NSW) 354, 363-4, Rich AJ stated:

The Act is designed to enable dealings in land unhampered by the
technicalities and pitfalls of Common Law conveyancing and real property
law. Speaking generally, it secures this end by enabling a proprietor so to
register his title that a purchaser from him may obtain a title free from
the interests of any persons who have not registered those interests in the
manner prescribed by the Act. But it makes no provision, express or implied,
for the destruction of public rights, nor does it provide any machinery for
the recognition of the existence or the creation of such rights. I cannot see
that it is inconsistent with the general purposes of the Act as gathered
from the Act itself that it should remain perfectly competent for a
registered proprietor to dedicate registered land for the purposes of a
public highway by any means which would suffice if the land were
unregistered, or that any acts or proceedings which would be sufficient to
create a highway over unregistered land should not be equally efficacious
where the land is registered.

[67] In Trieste Investments Pty. Ltd. v Watson (1963) 64 SR (NSW) 98, 103,
Herron CJ commented:

Public roads prevailed notwithstanding the absence of any note of their
existence from the certificate of title and a transferee took subject to
public rights-of-way although not specified in the certificate: Vickery v
Municipality of Strathfield. For s40 [NZ s35] is qualified by and must be
read subject to ss42 and 43. Section 42 [NZ s62] provides that the registered
proprietor shall, except in the case of fraud, hold the same subject to such
encumbrances, liens, estates or interests as may be notified in the register
book, but absolutely free of all other encumbrances, liens, estates or
interests.

Section 43 [NZ s182] provides that, except in the case of fraud, no person
taking a transfer from the registered proprietor shall be affected by notice
of any trust or unregistered interest. Rich AJ held that the language of
these sections was not wide enough to cover public rights of highways. The
interests referred to in s42 refer to those capable of existing in an
individual and do not refer to public rights of user. His Honour held, and I
agree with respect, that public highways lie wholly outside the Torrens
system.

In the same case Nagle J also referred to Vickery with approval. (p108-9)

[68] It has long been considered in New Zealand too that the doctrine can
apply to Torrens system land, although opportunities for its application are
now likely to arise very infrequently. In Martin v Cameron (1893) 12 NZLR
769, 771, Richmond J expressed his opinion "that the dedication to the
public is not affected by the provisions of the Land Transfer Act. A highway
is a right of passage for the public in general, not an easement nor any
kind of incorporeal hereditament". He considered that the interest created by
dedication is sui generis. It was not a registrable estate or interest under
the Act.

[69] In the last of these respects the position is now different. A
certificate of title cannot generally be issued for a road (see B E Hayes,
Registrar-General of Land, in (1986) 4 Butterworth's Conveyancing Bulletin
36, 37), but s169 of the Land Transfer Act provides for a road to be defined
on the register, on any deposited plan and on the duplicate certificate of
title of the land from which it has been taken. Roads shown on a survey plan
now vest automatically when the plan is deposited by a District Land
Registrar, without need for further conveyancing procedures to release
interests in the land (s238 Resource Management Act 1991). These changes do
not affect the validity of the rest of Richmond J's observations. The
authoritative voice of Mr EC Adams, a former Registrar-General of Land and
writer of a highly regarded commentary on the Land Transfer Act, surveying
the position in 1950, expressed the view that "the doctrine of implied
dedication of a highway prevails even over a Land Transfer title" (The
Doctrine of Implied Dedication of Land as a Public Highway [1950] NZLJ 315,
316).

[70] Richmond J had also made a comment on the practical consequence:

Purchasers are little, if at all, endangered by this state of the law,
because the existence of a road through a piece of land will generally be
evident, and should put a purchaser upon enquiry. (p772)

The risk must be even less, practically minimal, under modern conditions.

[71] The appellants placed some reliance on s64:

64. Title Guaranteed to Registered Proprietor-

Subject to the provisions of Part I of the Land Transfer Amendment Act 1963,
after land has become subject to this Act, no title thereto, or to any
right, privilege, or easement in, upon, or over the same, shall be acquired
by possession or user adversely to or in derogation of the title of the
registered proprietor.

[72] They stressed the words "possession or user" which they said would
prevent an acceptance by user by the public even if there were an intention
to dedicate on the part of the landowner. But these words must be read in the
context of the following words "adversely to or in derogation of the title
of the registered proprietor". If the proprietor has the necessary animus
dedicandi the possession by the local authority or the user by the public is
not adverse to or in derogation of the proprietor's title.

[73] Although since Martin v Cameron there has been legislation providing
for the taking of land for roading compulsorily or by agreement, there has
been nothing enacted which is comparable with s237 of the Local Government
Act 1919 (NSW) prescribing an exclusive procedure for the creation of a road
("A new public road shall not be opened except in accordance with the
provisions of this Act"). Mr Adams in the same article said (p317) that if a
statute prescribes a certain mode of dedication (such as for a subdivision -
see s238 Resource Management Act 1991 and, in force at the relevant time in
this case, s35(3) Counties Amendment Act 1961, and see Parkes & Wright v The
District Land Registrar at Wellington (1914) 33 NZLR 1449, 1457), there can
be no dedication by any other mode. But the appellants in the present case
have not been able to point to any such prescribing statute which would have
governed the situation on the Hooks farm. They have suggested that certain
Public Works Act procedures must be regarded as having been mandatory
because they provided protection for a landowner by prescribing a method of
taking land and imposing time restraints, but those procedures apply only to
a compulsory taking. They were quite unnecessary where the landowner wished
to sell or to dedicate a road and was not having property taken
compulsorily. Section 32 of the Public Works Act 1928 provided that a local
authority might enter into agreements to take land without complying with
the procedures in s22.

[74] The appellants' argument also faces the obstacle that the definition of
"road" in the Public Works Act 1928 included the soil of lands "over which
right of way has in any manner been granted or dedicated to the public by
any person entitled to make such grant or dedication" (s110(b)).
Significantly, this provision is not qualified by any words restricting its
application in then current circumstances, that is, after the commencement
of the Act. The definition of "road" in s191A of the Counties Act (in force
until 1 April 1979) adopted the Public Works Act definition. It now appears
in s43 of the Transit New Zealand Act 1989.

[75] We can find nothing in the scheme or in any particular provision of the
Land Transfer Act or in any other statute to which we have been referred
which expressly or impliedly abrogates the common law rule in the
circumstances of this case. It may rarely be necessary nowadays for a local
authority to rely upon the doctrine of implied dedication but in our view it
continues to apply in New Zealand, even in relation to Torrens system
land. Nor is that at all surprising. The integrity of the roading
infrastructure is of such importance to the economic and social welfare of
any society that it is to be anticipated that the public right to the use of
roads will be given a measure of priority when it comes in conflict with
private claims.

Indefeasibility of a transferee's title

[76] The appellants then argued that, if it were the view of the Court that
the Council had by such means acquired title to the roads before [<<]Man
O'War registered its transfer from Mr Hooks, nevertheless, by virtue of
the combined effect of ss62, 63, 182 and 183 of the Land Transfer Act,
Man O' War obtained upon registration of its memorandum of transfer a
title to the roads as well as to every other portion of land within the
certificate of title described in that transfer document.

[77] We find it unnecessary to reach a conclusion on the respondent's
argument that the estates and interests from which the registered transferee
is declared to be "absolutely free", by s62, are confined to private rights
and that accordingly those sections do not confer indefeasibility against a
public right of passage taking the form of a fee simple estate vested in a
local authority as a road. It seems to us, as it did to the Judge, that the
position is put beyond any doubt by s77:

77. No right to public road or reserve where unauthorised registration-

No right to any public road or reserve shall be acquired, or be deemed to
have been acquired, by the unauthorised inclusion thereof in any certificate
of title or by the registration of any instrument purporting to deal
therewith otherwise than as authorised by law.

[78] It is true that in The Mayor, Councillors, and Citizens of the City of
Wellington v J Staples & Co (1903) 23 NZLR 532 and 1122, Edwards J took a
more limited view, saying that the section applied only when the title when
issued included a road, but the point which now has arisen did not require
the decision of the Court and we do not read any of the other Judges as
having intended to deal with it. That was a case which could be and was
determined under the first limb of the section. The purchaser had acquired
land with a certificate of title within which the Registrar had, when
issuing the certificate of title and acting without authority, included an
area of public road. It was held that in such a case the certificate of title
so far as it did so was of no effect to vest title.

[79] Section 77 deals with two situations - (a) issue of a title which
purports without authority to include a road and (b) registration of an
instrument purporting to deal without authority with a road. As relevant to
this case, the section states that no right to any public road or reserve is
to be acquired or be deemed to have been acquired "by the registration of
any instrument purporting to deal therewith otherwise than as authorised by
law". The word "therewith" refers to "any public road or reserve", not to
the entirety of the first limb. The clear intent of the section is to render
ineffective the registration of any instrument in so far as it purports to
deal with a road in a manner not authorised by law.

[80] In the present case Mr Hooks' certificate of title did not when issued
in 1912 include any area of public road, but by the time when Man O'War
registered its transfer it did so because of the intervening implied
dedication. Mr Hooks as transferor was therefore purporting to transfer a
public road to Man O'War . This was to do something which the Council
itself was prevented by law from doing in such a manner. In the article
already referred to, Mr EC Adams observed (p318) that once there has been a
dedication as a public highway, the land remains a highway until closed by
statute or by formal process of law. It is vested in the local authority by
s316 of the Local Government Act 1974 and the local authority's only ability
to effect legal closure of a road comes from s342 and the Tenth Schedule to
that Act which contains an elaborate procedure which must be complied with.

[81] In Echolands Farms Ltd v Powell [1976] 1 NZLR 750, 756, Moller J also
rejected an argument that s77 envisaged only a situation in which the road
existed before the issue of the certificate of title. We consider that Moller
J was correct.

[82] It follows that Man O' War is not protected by the
indefeasibility provisions of the Land Transfer Act. The loop road continues
to be vested in the respondent as successor to the Council under s316 of the
Local Government Act notwithstanding registration of Man O'War 's
transfer.

Fraud

[83] It is therefore unnecessary to consider the respondent's argument that
Man O'War also did not obtain the protection of registration
because, through its agent Mr Spencer, it committed land transfer fraud
either when registering its transfer or by thereafter seeking to deny the
Council's title. All we would say is that there is a distinct question mark
over Mr Spencer's conduct in this regard. Anderson J plainly felt that it
came very close to actual dishonesty. We leave that matter open.

Result

[84] The appeal is dismissed and the respondent's cross-appeal allowed in
respect of the south-west deviation, with the result that the damages award
of $10,000 to Man O' War is set aside.

[85] The appellant must pay the respondent's costs on the appeal in the sum
of $15,000 together with its reasonable expenses, including the travel and
accommodation costs of counsel, to be fixed if necessary by the Registrar.

Solicitors

Clendon Feeney, Auckland for Appellant

Simpson Grierson, Auckland for First Respondent

Crown Law Office, Wellington for Second Respondent

Source:

Court of Appeal of New Zealand

MAN O'WAR STATION LIMITED v HURUHE STATION LIMITED & ORS [2000] NZCA
352 (27 November 2000)

IN THE court of appeal of new zealand ca245/98

between man o'war station limited

First Appellant

AND huruhe station limited
Second Appellant

and auckland city council (formerly waiheke county council)
First Respondent

AND the attorney-general
Second Respondent

Hearing: 9 November 2000

Coram: Gault J

Keith J

Tipping J

Appearances:R J Craddock QC and M A Muir for Appellants

A R Galbraith QC and R D C Hindle for First Respondent

No appearance for Second Respondent

Judgment: 27 November 2000

judgment of THE COURT DELIVERED BY GAULT J

[1] Following the delivery of the judgment of this Court on 11 April 2000,
the unsuccessful appellants applied for an order setting aside or, in the
alternative, recalling the judgment.

[2] By its judgment the Court upheld the decision of Anderson J in the High
Court that parts of the appellants' lands on Waiheke Island had been the
subject of implied dedication for road by a predecessor in title to the
appellants.The Court also allowed a cross-appeal and held that the Judge
should have found a further part of the land (the south-west deviation) was
also the subject of dedication.This resulted in substantial reduction of the
land over which the claim by the appellants in trespass had been upheld.The
Court did not, and did not need to, go on to consider the cross-appeal
against the decision so far as it rejected an attack on the appellants'
title to the land formed as road on the ground of fraud.

[3] In the amended notice the ground on which it was sought to set aside the
judgment was:

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.

[4] The grounds for recall of the judgment were that the Court failed to
determine two matters.The first was the appellants' appeal against the award
of damages against the Auckland City Council (the Council) for trespass over
that part of the land formed as road but not held to have been dedicated for
that purpose.The second matter was the Council's appeal against the finding
that the appellants were not to be fixed with Land Transfer Act fraud.

[5] The application was opposed by the Council.The Attorney-General took no
part in the hearing on the application.

[6] Prior to the hearing of the application counsel for the appellants
advised that the second ground for recall of the judgment would not be
pursued. Counsel also raised objection to the intended composition of the
Court to hear the application, contending that a new court should be
constituted excluding all members of the Court who decided the
appeal.Because the application still sought an order recalling the judgment
for failure to deal with one matter, because the ground of bias was
supported with reference to recollections of what was said in the course of
the appeal hearing, and because there clearly would be argument on the
significance of the evidence of the witness in question, counsel were
advised that the Court would comprise those members who sat on the appeal
excluding Blanchard J, and Henry J who had retired.

[7] Counsel renewed the objection to the composition of the Court at the
commencement of the hearing, but advanced no further grounds of objection
beyond those contained in counsel's memorandum dated 31 October 2000.We were
not convinced that any of the reasons there advanced required the earlier
decision to be revisited nor necessitated disqualification of any of the
members of the Court sitting on the matter.We add only that we reject the
suggestion of "the unarticulated judicial reluctance to enquire into even
the possibility that another Judge has acted improperly" which in any event
would be no different for other members of the Court.The hearing proceeded.

[8] Counsel then informed the Court that an arrangement had been arrived at
to avoid argument at the present time on the remaining ground for recall.The
case is destined for further appeal to the Privy Council.We have before us
an application for conditional leave to appeal, duly consented to, which we
are asked to take up in the event that the application to set aside the
judgment is dismissed.

[9] The agreed arrangement, subject to acceptance by the Court, is that
consideration of the appeal against the basis on which the damages for
trespass were awarded be deferred until after the appeal to the Privy
Council.If the appellants succeed, this Court will then be asked to deal
with the points of principle involved in a supplementary judgment without
the need for further hearing.Any further quantification would then go back
to the High Court.If the appellants succeed only in respect of the
south-west deviation land, or do not succeed with their appeal the matter of
damages will not be pursued.The Court accepts that proposal.

[10] We turn to the contention that Blanchard J was disqualified for
apparent bias.A witness at the trial was a Mr Ian Grierson, a surveyor, who
had been responsible for the survey work undertaken to define the proposed
road through the land of the predecessor in title to the appellants, Mr
Hooks.It was said that the relationship between Blanchard J and Mr Ian
Grierson is such as to give rise to the appearance of bias in the Judge
sitting on the appeal.

[11] Mr Craddock QC in his argument made much of the importance of the
witness. Of course, this Court did not see or hear the witnesses and had the
benefit of the trial Judge's findings of fact.The appellants did seek to
have facts revisited to some extent, and in that regard Mr Ian Grierson's
evidence was not only of technical survey work but also of events and the
roles of key people involved at the relevant times.For the purposes of
argument we accept he was an important witness though we would not go so far
as the appellants who based their application on the fact that Mr Grierson
was the council's principal witness.

[12] There was no substantial disagreement between the parties on the
applicable legal principles.They are those set out in the speech of Lord
Goff in R v Gough [1993] AC 646 and accepted by this Court in Auckland
Casino Ltd v Casino Control Authority [1995] 1 NZLR 142.

[13] In Gough Lord Goff, with whom the other members of the House of Lords
agreed, said:(p670)

In conclusion, I wish to express my understanding of the law as follows.I
think it possible, and desirable, that the same test should be applicable in
all cases of apparent bias.

...

Furthermore, I think it unnecessary, in formulating the appropriate test, to
require that the court should look at the matter through the eyes of a
reasonable man, because the court in cases such as these personifies the
reasonable man;and in any event the court has first to ascertain the
relevant circumstances from the available evidence, knowledge of which would
not necessarily be available to an observer in court at the relevant time.
Finally, for the avoidance of doubt, I prefer to state the test in terms of
real danger rather than real likelihood, to ensure that the court is
thinking in terms of possibility rather than probability of
bias.Accordingly, having ascertained the relevant circumstances, the court
should ask itself whether, having regard to those circumstances, there was a
real danger of bias on the part of the relevant member of the tribunal in
question, in the sense that he might unfairly regard (or have unfairly
regarded) with favour, or disfavour, the case of a party to the issue under
consideration by him.

[14] Those general principles were followed and applied with helpful
guidance as to the appropriate approach in the judgment of the Court of
Appeal in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 2 WLR 870,
[2000] 1 All ER 65.Counsel referred us to passages in the judgment of that
Court;Mr Craddock emphasising passages primarily directed to considerations
of recusal in advance and Mr Galbraith emphasising the more direct approach
when apparent bias is considered after the event.Using the references to the
All England Reports, we note first the comment (p75) that the reviewing
court may receive a written statement from a Judge against whom an
allegation of apparent bias is made.We did that in this case.After the
filing of affidavits was complete those affidavits were referred to
Blanchard J and he made a brief written statement to the Court which was
made available to counsel.

[15] The Locabail judgment also dealt with the position of solicitors who
sit as judges which occurs in England, and commented upon their position as
distinguished from that of barristers (p75).

[16] The Court approved observations of 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:

The reasonableness of the apprehension must be assessed in the light of the
oath of office taken by the Judges to administer justice without fear or
favour;and their ability to carry out that oath by reason of their training
and experience.It must be assumed that they can disabuse their minds of any
irrelevant personal beliefs or predispositions.They must take into account
the fact that they have a duty to sit in any case in which they are not
obliged to recuse themselves.At the same time, it must never be forgotten
that an impartial Judge is a fundamental prerequisite for a fair trial and a
judicial officer should not hesitate to recuse herself or himself if there
are reasonable grounds on the part of a litigant for apprehending that the
judicial officer, for whatever reasons, was not or will not be impartial.

[17] The Court went on to deal with factors to be taken into account in the
following terms (p77):

It would be dangerous and futile to attempt to define or list the factors
which may or may not give rise to a real danger of bias.Everything will
depend on the facts, which may include the nature of the issue to be
decided.We cannot, however, conceive of circumstances in which an objection
could be soundly based on the religion, ethnic or national origin, gender,
age, class, means or sexual orientation of the judge.Nor, at any rate
ordinarily, could an objection be soundly based on the judge's social or
educational or service or employment background or history, nor that of any
members of the judge's family;or previous political associations;or
membership of social or sporting or charitable bodies;or Masonic
associations;or previous judicial decisions; or extra-curricular utterances
(whether in textbooks, lectures, speeches, articles, interviews, reports or
responses to consultation papers);or previous receipt of instructions to act
for or against any party, solicitor or advocate engaged in a case before
him.

...

By contrast, a real danger of bias might well be thought to arise if there
were personal friendship or animosity between the judge and any member of
the public involved in the case;or if the judge were closely acquainted with
any member of the public involved in the case, particularly if the
credibility of that individual could be significant in the decision of the
case;or if, in a case where the credibility of any individual were an issue
to be decided by the judge, he had in a previous case rejected the evidence
of that person in such outspoken terms as to throw doubt on his ability to
approach such persons' evidence with an open mind on any later occasion;or
if on any question at issue in the proceedings before him the judge had
expressed views, particularly in the course of the hearing, in such extreme
and unbalanced terms as to throw doubt on his ability to try the issue with
an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568);or if,
for any other reason, there were real ground for doubting the ability of the
judge to ignore extraneous considerations, prejudices and predilections and
bring an objective judgment to bear on the issues before him.The mere fact
that a judge, earlier in the same case or in a previous case, had commented
adversely on a party or witness, or found the evidence of a party or witness
to be unreliable, would not without more found a sustainable objection.In
most cases, we think, the answer, one way or the other, will be obvious.But
if in any case there is real ground for doubt, that doubt should be resolved
in favour of recusal.We repeat:every application must be decided on the
facts and circumstances of the individual case.The greater the passage of
time between the event relied on as showing a danger of bias and the case in
which the objection is raised, the weaker (other things being equal) the
objection will be.(emphasis added)

[18]Mr Galbraith argued that when an issue of apparent bias is considered
after the event the result of these authorities is to indicate that the
approach should be to ascertain on the basis of all the facts available
whether, in fact, there was bias.We think that proposition is supported by
the authorities only in the negative.Where after the event it is established
that there could not have been bias then it is unnecessary to dwell on the
appearance.Two of the five cases dealt with in the Locabail judgment were
determined on that basis.Mr Galbraith did accept that in appropriate
circumstances the inference of a danger of bias can be drawn from the
circumstances and perceptions.

[19] Armed with that guidance, the issue before us is whether we are
persuaded that there is a real danger that the Judge unfairly regarded the
case of the appellant with disfavour when he participated as a member of the
Court on the appeal.

[20] The direct relationship between the Judge and the witness could not
seriously be advanced as so close as to raise any issue of apparent bias.
Blanchard J, before his appointment to the High Court bench in 1992,
practised as a member of one of the small number of large firms of
barristers and solicitors in Auckland, Simpson Grierson.He had been a
partner in that firm, or the firm of Grierson Jackson & Partners, one of the
predecessors to Simpson Grierson, since 1968 and was an employee before that
from 1962.Mr Ian Grierson had practised from about 1955 as a registered
surveyor and civil engineer in a partnership which subsequently incorporated
into a company Harrison Grierson Consultants Ltd.

[21] The firms of Grierson Jackson & Partners, later Grierson Bornholdt &
Partners, and Simpson Grierson have acted for Harrison Grierson.Simpson
Grierson's records indicate that that firm acted personally for Mr Ian
Grierson in the preparation of a will and in respect of a family trust.Those
records do not indicate that the Judge ever acted for Mr Ian Grierson
personally.The Judge did have an involvement in the late 1970's or early
1980's advising the partners of Harrison Grierson in relation to a
partnership agreement.In 1979 he was one of two trustees appointed in
connection with a retirement arrangement for those partners, but the scheme
was discontinued in about 1984 when the firm incorporated.That involvement
did not include any direct contact with Mr Ian Grierson.

[22] The evidence is that although they were acquainted because of a close
link each had with Mr Max Grierson, there was no personal friendship and has
been no social contact other than possible social functions of the
respective firms. Both agree their paths have seldom crossed and they have
not spoken at all since the Judge was appointed in 1992.

[23] But the appearance of bias is said to arise because of Mr Max Grierson.
He was Mr Ian Grierson's father.He was also a practising solicitor who was
widely known in Auckland.He had a long and close association with the Judge.
Before the Second World War Mr Max Grierson and the Judge's father practised
law in Pukekohe.The Judge's father was killed in the War.Mr Max Grierson
took some interest in, and was supportive of, the career of his friend's son
who eventually joined the firm in which he was a partner.They were partners
until 1978.Thereafter Mr Max Grierson was a consultant to the firm and later
to Simpson Grierson until his death in 1994.The Judge confirms that he had a
warm and close relationship with Mr Max Grierson and regarded him as his
mentor in the law.

[24] We were not invited to infer that the Judge's relationship with Mr Max
Grierson would give rise to the perception of predisposition towards his son
as a witness.The argument was that it was the relationship between the Judge
and the witness that did that.The association with the witness's father was
pointed to as a factor indicating the length and closeness of the
association between Mr Ian Grierson and the Judge.Mr Ian Grierson said
however:

I did not have any particular contact or friendship with Justice Blanchard
as a child.The reality is that we had very little to do with each
other.Justice Blanchard was brought up by his mother, but not in Pukekohe.It
was not as if Justice Blanchard was a regular visitor in our family home.We
would see him on occasion and of course I knew who he was.However as far as
I can recall we never had anything much to do with each other.It is not as
if we spent holidays together or anything of that sort.

[25] His brother, Mr Bruce Grierson (who retired from the solicitors' firm
in 1979), put it this way:

My brother and His Honour were certainly well known to each other through
both family and professional connections.While they were on friendly terms,
I do not think they could be described as personal friends.So far as I am
aware, social contact between them was confined to any social functions of
our respective firms.

[26] The statement that "they were on friendly terms" is to be taken in
light of the contacts between them and the evidence of lack of contact for
the last eight years which we have no hesitation in accepting.Accordingly
the common close affiliation to Mr Max Grierson did not give rise to any
close association.The claim that it did seems to suffer from the fallacy of
the undistributed middle.

[27] For the appellants it was argued that the appearance of bias arising
from the acquaintanceship is exacerbated by two further matters.The first
arises from the comment by way of disclosure made by Blanchard J at the
start of the hearing of the appeal.According to the affidavit of Mr Joyce,
solicitor for the appellants:

At the commencement of the hearing on 8 March 2000 the Rt Hon Justice
Blanchard informed counsel for the appellants and respondents that there was
a matter which he regarded as appropriately disclosed to them, namely that
he had been a partner in the Auckland law firm of Simpson Grierson at a time
when it was instructed by the first respondent, Auckland City Council (ACC),
in relation to the matter under appeal.He went on to state that he had not
at any stage been personally involved in the litigation although he was
aware that it was being handled by the firm.In those circumstances senior
counsel for the appellants Mr Craddock QC confirmed that the appellants had
no objection to His Honour forming part of the Court's coram.The fact that
His Honour was formerly a partner in Simpson Grierson was of course already
known to the appellants and was not a matter which of itself concerned them.

[28] Junior counsel for the appellants said this conformed with her
recollection.The Judge in his statement disagreed to a degree.He said:

What is said concerning my disclosure in Court at the commencement of the
hearing is not accurate.I was careful to say that I had not been aware of
the case when I was at Simpson Grierson.I had realised from the dates alone
when I read the papers for the hearing that Simpson Grierson must have been
instructed when I was a partner in the firm, but I did not myself know
anything of it.

[29] The Judge's version accords with the recollection of members of the
Court and with his advice to the presiding judge before the Court sat on the
appeal. Nothing turns on the difference however.The appellants were content
to agree to the Judge sitting even on the understanding of their solicitor
and counsel. In argument, however, the matter was relied on as a basis for
the claim that the disclosure made should be seen as increasing the
appearance of bias when taken with the failure to disclose the further
matters now raised.Counsel's submission was:

Disclosure by His Honour of a significantly less important association
inevitably raises questions in the minds of an impartial observer (albeit
one without the "unarticulated judicial reluctance to inquire into even the
possibility that another judge had acted improperly") about why His Honour's
acquaintance with Mr Grierson, close friendship with the person whom he knew
to be Mr Grierson's father, and the professional associations between His
Honour's former firm and Harrison Grierson (if not his Honour and Mr
Grierson personally) were not similarly disclosed.Partial disclosure is, it
is submitted, inappropriate in itself but, worse, it can add to the
appearance of bias by suggesting either defensiveness or perhaps even an
attempt to obfuscate on the part of the judicial officer concerned.Even
where the decision-maker has in fact been scrupulously impartial, if there
is a basis on which informed and reasonable members of the public might
reasonably entertain such concerns, then it is submitted the Court should
intervene.

Bearing in mind the test is the perception of a fully informed court
personifying the reasonable observer, this argument plainly is an invitation
to reject the Judge's explanation that:

It did not occur to me that the relationship between Mr Ian Grierson and Mr
Max Grierson, which I thought was very well known in Auckland professional
circles, was not known to those advising the appellant.

Further, it appears to be an argument that the Court should find concealment
of actual bias though Mr Craddock disavowed that.

[30] We are content to accept the Judge's explanation and find nothing in
the non-disclosure adding to the strength of the apparent bias argument.

[31] The second matter relied upon was a statement made by the Judge in the
course of the argument on the appeal in which he referred to Mr Ian Grierson
as a "meticulous surveyor".This is referred to by both the solicitor and
junior counsel for the appellant.Neither provides the context and Mr
Craddock was unable to assist in the course of his argument.Counsel who
represented the Council on the appeal was able to offer assistance on the
context.They said:

Counsel for the Council recall a reference to a `meticulous surveyor'.They
cannot recall whether the statement was that Mr Grierson `was' or `might
have been' a meticulous surveyor.Their recollection (allowing for the lapse
in time) is that the comment was made in the context of the delay which took
place - their impression was that the remark was ironic.

[32] That stimulated the recall of one member of the Court who confirms the
context.The other two members have no note or recollection of the remark
which is not surprising if the context was as suggested.In any event, there
was no issue in the case concerning the accuracy or precision of the survey.
We therefore do not regard the comment as significantly increasing the
danger or possibility that the Judge was biased against the appellants or in
favour of the respondents because of his past association with the witness.

[33] 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.For the
reasons we have given the additional factors relied on for the appellants in
this case do not strengthen the claim.

[34] The application to set aside the judgment is dismissed.

[35] That leaves to be dealt with the application for conditional leave to
appeal to the Privy Council.As indicated, there is consent from the City
Council.The Attorney-General abides the decision of the Court.Accordingly,
conditional leave is granted on the usual terms, that security for costs in
the sum of $2,000 be paid within three months and, within the same time, the
record is to be prepared for dispatch to London.

[36] The first respondent is entitled to costs on the present application
which we fix at $3,500 together with reasonable disbursements including
travel and accommodation expenses of counsel approved, if necessary, by the
Registrar.

Solicitors

Clendon Feeney, Auckland. for Appellants

Simpson Grierson, Auckland, for First Respondent

Crown Law Office, Wellington, for Second Respondent

Source

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Public Access New Zealand, P.O.Box 17, Dunedin, New Zealand

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