IN THE HIGH COURT OF NEW ZEALAND  
WELLINGTON REGISTRY  
I TE KŌTI MATUA O AOTEAROA  
TE WHANGANUI-A-TARA ROHE  
CIV-2019-485-662  
[2022] NZHC 1669  
UNDER  
The Judicial Review Procedure Act 2016  
IN THE MATTER OF  
An application for Judicial Review of a Land  
Valuation Tribunal hearing in respect of  
objections under the Rating Valuations Act  
1998 and the Land Valuation Proceedings  
Act 1948  
BETWEEN  
RONGOTAI INVESTMENTS LTD and  
RONGOTAI ESTATES LIMITED  
Applicants  
AND  
AND  
AND  
AND  
AND  
LAND VALUATION TRIBUNAL  
First Respondent  
2468 LIMITED  
Second Respondent  
BUNNINGS LIMITED  
Third Respondent  
LYALL BAY PROPERTIES LIMITED  
Fourth Respondent  
WELLINGTON INTERNATIONAL  
AIRPORT LTD  
Fifth Respondent  
AND  
AND  
AND  
WELLINGTON CITY COUNCIL  
Sixth Respondent  
ATTORNEY-GENERAL  
Seventh Respondent  
NZ CASH FLOW CONTROL LIMITED  
Eighth Respondent  
RONGOTAI INVESTMENTS LTD and RONGOTAI ESTATES LIMITED v LAND VALUATION TRIBUNAL  
and ORS [2022] NZHC 1669 [19 July 2022] [Judicial Review]  
Hearing:  
1–10 June and 20 to 23 September 2021  
Appearances:  
G Allan, T Mijatov and M Robertson for Rongotai Parties  
No Appearance for 1st Respondent  
S V McKechnie and E H Wiessing for 3rd Respondent  
K Sullivan and S Gazley for 2nd, 4th, 5th and 8th Respondents  
No Appearance for 6th Respondent  
No Appearance for 7th Respondent  
Judgment:  
19 July 2022  
JUDGMENT OF CULL J  
[Judicial Review]  
Table of Contents  
Para No.  
[1]  
Introduction  
Procedural Background  
The claims and the opposition  
Structure of this judgment  
Background to the 2012 hearing  
The Pengelly sale  
[5]  
[13]  
[15]  
[16]  
[17]  
[22]  
[24]  
[26]  
[31]  
[36]  
[39]  
[42]  
[47]  
[48]  
[53]  
[56]  
[62]  
[74]  
[84]  
[85]  
[94]  
[95]  
[99]  
[113]  
[122]  
[126]  
[132]  
[133]  
[135]  
The interim decision  
The substantive decision  
The Tribunal’s function and powers  
The legal tests  
Hearing Conduct  
Excessive intervention  
Evidential warning to Mr Aharoni  
The three “perjury” warnings  
(a)  
(b)  
(c)  
First warning  
Second warning  
Third warning  
Interventions with Rongotai’s experts  
Engagement with opposing Counsel  
Adverse comments  
Criticism of witnesses  
Criticism of the Rongotai parties  
(a)  
(b)  
The recusal application  
Criticism of Rongotai’s Counsel’s conduct  
The exclusion orders  
The pursuit of an irrelevant inquiry  
Post-hearing conduct  
Did the Tribunal act with apparent bias or predetermination?  
Predetermination  
Apparent bias  
Analysis  
[159]  
[186]  
[193]  
[198]  
[199]  
[204]  
What is the relief?  
The interim decision  
The substantive 2012 decision  
Relief  
Costs  
Introduction  
[1]  
This is an application for judicial review of the processes and decision-making  
of the Land Valuation Tribunal (the Tribunal), in its 2012 interim1 and final 2012 rating  
valuation decisions.2  
[2]  
The applicants, Rongotai Investments Ltd and Rongotai Estates Ltd  
(collectively “Rongotai”), allege that the Tribunal’s conduct and its 2012 decisions  
disclosed apparent bias and/or pre-determination of the matters in issue. Rongotai  
seek orders setting aside the Tribunal’s interim and final decisions in respect of the  
2012 objections; declarations that the 2012 objections’ hearing was unfair; and that  
the Tribunal’s conduct and its 2012 decisions disclosed apparent bias and/or pre-  
determination. Arehearing of the 2012 objections by a differently constituted Tribunal  
is no longer sought.  
[3]  
This judicial review application was heard sequentially with the consolidated  
appeal hearing of four appeals and cross-appeals against the Tribunal’s decisions in  
respect of the 2007, 2012, 2015 and 2018 rating year objections. The agreed  
background facts, with the details of the Rongotai area and the description of the  
assessment of rates, has been fully described in the 2007 appeal judgment,3 which was  
issued contemporaneously in a suite of six judgments, including this judgment.  
1
Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 093 [the 2012 interim  
decision].  
2
Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 108 [the 2012 decision].  
Rongotai Investments Ltd v Wellington City Council [2022] NZHC 1665 [2007 Rating Valuation  
3
Appeal].  
       
[4]  
This decision should be read in conjunction with the 2012 appeal judgment,4  
as it concerns the conduct of the 2012 rating valuation hearing with the same parties  
and the same subject properties.  
Procedural Background  
[5]  
A history of the Tribunal’s decisions sets the context for this judicial review  
application. The Tribunal issued its decision in relation to the 2007 rating valuation  
objections on 19 July 2019.5 Rongotai sought to stay the hearings in relation to the  
further three valuation rating years. This was declined.6 On the same day, the Tribunal  
issued a Minute declining Rongotai’s application to recuse Tribunal member Gordon.  
The next day, on 20 August 2019, Rongotai filed proceedings in the High Court  
seeking judicial review of the Tribunal’s decisions, together with an application to stay  
the 2012 hearing. On 26 August 2019, Doogue J declined to grant relief.7 Those  
judicial review proceedings were discontinued by Rongotai on 28 August 2019.  
[6]  
On 27 September 2019, Rongotai applied for the allocation of a priority fixture  
to hear among other matters, a separate question of law in relation to the 2007 appeal.  
I declined that application.8 Neither my judgment nor that of Doogue J dealt with the  
issue of bias and pre-determination or the issues raised in these judicial review  
proceedings.  
[7]  
On 19–29 August 2019, the Tribunal heard the 2012 rating objections. The  
Tribunal issued an oral interim decision (interim decision) dated 12 September 2019,  
holding that the Pengelley transaction was relevant to its determination of the 2012  
rating valuation objection.9  
[8]  
On 6 November 2019, Rongotai filed a judicial review proceeding seeking  
that the Tribunal’s interim 2012 decision be quashed, and orders preventing the  
Tribunal from issuing a final judgment on the 2012 objection, requiring the 2012  
4
Rongotai Investments Ltd v Wellington City Council [2022] NZHC 1666 [2012 Rating Valuation  
Appeal].  
5
NZ Cash Flow Control Ltd v Wellington City Council [2019] NZLVT 078 [the 2007 decision].  
Rongotai Investments Ltd v Wellington City Council [2019] NZLVT 083.  
Rongotai Investments Ltd v Land Valuation Tribunal [2019] NZHC 2103 (per Doogue J).  
Rongotai Investments Ltd v Wellington City Council [2019] NZHC 2741 (per Cull J.  
6
7
8
9
The 2012 interim decision, above n 1.  
     
objection be reheard by a differently constituted Tribunal, and prohibiting the Tribunal  
(as then constituted) from hearing or determining the 2015 and 2018 valuation  
objection hearings. Solicitors for Rongotai served the judicial review pleadings on the  
Tribunal and filed with the Tribunal a Memorandum of Counsel confirming that the  
judicial review proceedings had been filed in the High Court; noting the relief sought  
included orders prohibiting the Tribunal from hearing and determining the 2015 and  
2018 rating year objections; and inviting the Tribunal to consider whether it should  
hear those further rating objections.  
[9]  
The Tribunal issued its final decision in respect of the 2012 rating year  
objections the following day.10 In directions made by the presiding Judge, the Tribunal  
noted that in the absence of any decision from the High Court, the Tribunal was issuing  
its 2012 decision. That decision has been appealed and cross-appealed. The  
determination of that appeal is contained in our 2012 appeal judgment.11  
[10] On 8 November 2019, Rongotai applied for interim orders under s 15 of the  
Judicial Review Procedure Act 2016, prohibiting the Tribunal as constituted from  
taking any further steps in relation to the 2012, 2015 or 2018 objection hearings, or  
otherwise staying those hearings, until the substantial judicial review claims were  
heard and determined.  
[11] The interim application was heard on 19 November 2019. In declining relief,  
Cooke J noted that a key consideration was the nature and strength of Rongotai’s  
challenge and what was necessary to properly assess that challenge.12 Because there  
needed to be a careful consideration of all the evidence from the hearing and given the  
circumstances of the case, the Judge held that an interim relief hearing was an  
inadequate opportunity to assess Rongotai’s challenge. In dismissing the application  
for interim orders, however, Cooke J said this:13  
I accept that there are some features of the hearing that took place before the  
Tribunal before 19 and 29 August 2019, and the steps taken thereafter, that  
can be described as unorthodox, and give rise to a possible question relating  
to the fairness of the approach that was followed.  
10  
The 2012 decision, above n 2.  
The 2012 appeal judgment, above n 4.  
Rongotai Investments Ltd v Land Valuation Tribunal [2019] NZHC 3040 at [19].  
At [20].  
11  
12  
13  
 
[12] In his decision, the Judge then set out five of those unorthodox features, being  
the Tribunal’s far-reaching factual enquiries; the exclusion of witnesses; the warnings  
about perjury; the substantial questioning by the Chair of the Tribunal; and the timing  
of the release of the Tribunal’s decisions.14 Those features are reflected in the grounds  
of these substantive judicial review proceedings.  
The claims and the opposition  
[13] In summary, Rongotai pleads two claims in judicial review, apparent bias and  
pre-determination, although both claims similarly challenge the conduct of the  
Tribunal both during and post-2012 hearing. The claim is that the Tribunal disclosed  
apparent bias and/or pre-determination in its interactions with Rongotai Counsel, with  
Rongotai witnesses and any witnesses supporting the Rongotai position, such conduct  
including substantive questioning bordering on cross-examination by the Tribunal,  
inappropriate alignment with opposing Counsel, unjustified orders for exclusion of  
witnesses, and questionable post-hearing conduct in the release of the Tribunal’s  
decision. Rongotai say that they were denied a fair hearing as a result of the Tribunal’s  
apparent bias and/or pre-determination.  
[14] The third respondent and the other lessees15 oppose the application for relief.  
In essence, they say that the application for judicial review is misconceived because  
the right to appeal the 2012 decision by way of rehearing will cure any procedural  
irregularities. They resist the claim that the impugned conduct and decisions of the  
Tribunal showed apparent bias, predetermination or unfairness. They say the conduct  
of the hearing was robust, but not unsurprisingly so, given the factual contests raised  
by the parties. They submit that Rongotai have had their day in Court, with a two-  
week hearing for the 2012 assessment, involving oral evidence from experts and  
witnesses of fact.  
Structure of this judgment  
[15] I will deal with Rongotai’s claims as follows:  
14  
At [20].  
15  
“Other lessees” refer to the second, fourth, fifth and eighth respondents.  
       
(a)  
(b)  
(c)  
(d)  
(e)  
(f)  
Background to the 2012 hearing  
The Tribunal’s function and powers  
The legal tests  
Hearing and post-hearing conduct  
Assessment of apparent bias and predetermination  
Relief  
Background to the 2012 hearing  
[16] The focus of the 2012 interim decision was whether the Pengelly sale should  
be included as a comparable sale in assessing the market value of the properties in the  
Rongotai area for the 2012 rating year assessment. The background to the Pengelly  
sale is addressed fully in our 2012 appeal judgment.16  
The Pengelly sale  
[17] The Tribunal issued an interim oral decision two weeks after the ten day  
hearing. The Tribunal considered that the oral decision would enable “the parties …  
to have the benefit of the Tribunal’s view having heard all the evidence in relation to  
the Pengelly transaction.”17  
[18] In its oral decision, the Tribunal described the Pengelly transaction as follows:  
[4] At the heart of much of the factual dispute between the parties in relation  
to the 2012 valuation is a sale and purchase transaction which occurred by  
agreement dated 17 October 2012 in relation to two properties within the  
Rongotai precinct situated near the Wellington Airport. The Rongotai area is  
more particularly described in our previous decision.1  
[5] The properties subject to sale were 94 Tirangi Road and 8 Kingsford  
Smith Street and were sold by Rongotai Properties Limited (for 94 Tirangi  
Road) and Tullamarine Properties Limited (for 8 Kingsford Smith Street) to  
Pengelly Properties Limited by agreement for a total price of $2, 375,000.  
That sum was broken down by terms of the two agreements entered into. We  
16  
The 2012 appeal judgment, above n 4, at [22]–[29].  
The 2012 interim decision, above n 1, at [2].  
17  
       
attach as A and B the key pages from the agreements for sale. The terms are  
standard and the offer is unconditional.  
[5] It is common ground that the process leading to that was one undertaken  
by Baileys for the vendors by way of a tender process. Mr Grant Young, a  
senior real estate agent, with some in excess of 20 years’ experience, acted for  
the vendors in respect of the preparation and tendering of the property. He  
gave evidence to the Tribunal and we acknowledge him to be a senior real  
estate agent well versed in the matters related to the tendering of business  
properties.  
[19] Mr Aharoni of Prime Property Group Ltd made conditional offers for the  
properties for $3.6 million.18 The conditional offer made by Aharoni contained a  
clause converting an agreement for sale and purchase on its face, into an option to  
purchase.19 Mr Aharoni’s conditional agreement was cancelled by the vendor, after  
the expiry of the option and Mr Aharoni’s failure to meet a deadline imposed of 1 pm  
the following day to make an alternative unconditional offer together with a five per  
cent deposit on “cleared” funds.  
[20] The difference between the agreed price in Mr Aharoni’s conditional 2012  
agreement and the ultimate price the vendors reached with Pengelly Properties Ltd  
was $1,226,000. This significant price difference was therefore in issue when the  
Pengelly sale was included as a comparator market sale. It became a prominent issue  
in the hearing, in which Mr Aharoni and the vendor were each challenged about their  
evidence in relation to this transaction.  
[21] Rongotai contended before the Tribunal that the Pengelly sale was effectively  
a forced or distressed sale and secondly, that the vendor had not acted prudently in  
advising the best price. They said it should not be included as a comparator sale  
because it was not a valid market transaction, or if included, should be given less  
weight. The lessees submitted the Pengelly sale was highly relevant as it was an arms-  
length sale in the location, at the relevant time.  
18  
The vendors were given a tenders’ sheet, which is annexed to the Tribunal’s interim decision  
marked ‘C”, showing the offers that were presented.  
BS Developments No 12 Ltd v PB and SF Properties Ltd (2006) 7 NZCPR 603 (CA) at [35].  
19  
The interim decision  
[22] The Tribunal found that the Pengelly sale was an arm’s length and valid  
transaction, which would be considered in the 2012 rating valuations as a relevant  
comparator. In rejecting Rongotai’s contention that the Pengelly sale was not  
reflective of the best market price, the Tribunal made adverse comments about Mr  
Aharoni and Ms Watson, both of whom contended the Pengelly sale was problematic.  
[23] Although Counsel for Rongotai challenges the Tribunal’s characterisation of  
the relevance of the Pengelly sale and Mr Aharoni’s cancelled sale and purchase  
agreement, it is the Tribunal’s adverse remarks in its interim decision that is at the  
heart of this judicial review application. Those remarks, that Mr Aharoni had a  
collateral purpose, that he used an agent to try and argue for a higher per square metre  
value for the Rongotai land, and that his role in making such enquiries through his  
agent was “highly dubious”,20 Rongotai says, were illustrative of the Tribunal’s  
apparent bias or predetermination against Rongotai’s position.  
The substantive decision  
[24] Having determined that the Pengelly sale should be included as a comparable  
market sale, the Tribunal concluded that the valuation roll figures determined by  
Quotable Value New Zealand Ltd (QV) for the 2012 rates assessment were not in error,  
with one exception. The Tribunal concluded that the roll valuation for 5–11 Kingsford  
Smith Street, one of Rongotai’s subject properties under objection, was too high an  
assessment and adjusted its valuation downward to $375,000. Unlike its 2007  
decision, the Tribunal decided that no adjustment to the land value of the properties  
needed to be made for the encumbrance of “Glasgow” leases.  
[25] This judicial review application has as its focus the Tribunal’s conduct during  
the 2012 hearings. Before dealing with the bias and pre-determination allegations, it  
is relevant to consider the nature of the Tribunal’s jurisdiction and procedure before  
dealing with the specific allegations.  
20  
The 2012 interim decision, above n 1, at [44].  
       
The Tribunal’s function and powers  
[26] Land Valuation Tribunals were established in 1977 by virtue of s 19 of the Land  
Valuation Proceedings Act 1948 (LVPA),21 and assumed the jurisdiction of the former  
Administrative Division of the Supreme Court in land valuation matters. Under s 36  
of the Rating Valuations Act 1998, it is the jurisdiction of Land Valuation Tribunals to  
hear and determine objections to valuations following their review by a territorial  
authority.  
[27] Every Land Valuation Tribunal shall consist of a Chairman, who must be a  
District Court Judge and two other members, one or both of whom shall be registered  
valuers.22 The Chairman of the Tribunal has a “deliberative vote” and in the case of  
an inequality of votes, has the casting vote.23 The two members of the Tribunal must  
take an oath that they will “faithfully and impartially perform the duties of their  
office.”24 In some instances, the Chairman has jurisdiction to sit alone and make  
orders on questions of law and procedure as specified under s 19(8) of the LVPA.  
[28] Counsel have directed my attention to the function of the Tribunal, which they  
each submit has relevance to the determination of the conduct of the Tribunal in the  
2012 hearing.  
[29] Counsel for Rongotai, Mr Allan, submits the judicial role of the Tribunal Chair  
is significant, given the Judge’s role as Chair and that he enjoys tenure. As an  
illustration, he says, the Judge remarked during the 2012 hearing that “this is a Court  
of law” and not a more informal “Council hearing.” Further, Mr Allan submits that  
under s 27(1) of New Zealand Bill of Rights Act 1990 (NZBORA) parties have the  
right to the observance of the principles of natural justice by any Tribunal.  
21  
The LVPA replaced the Land Valuation Court Act 1948, which established the Land Valuation  
Court and gave it the jurisdiction formerly exercised by the Land Sales Court (which fixed values  
for the purposes of transactions under the Servicemen’s Settlement and Land Sales Act 1943),  
claims for compensation for land taken or injuriously affected under the Public Works Act 1928;  
and objections to valuations under the Valuation of Land Act 1925. See JP McVeagh Land  
Valuation Law (7th ed, Butterworths, Wellington, 1979) at 50–51.  
Land Valuation Proceedings Act 1948, s 19(2).  
Section 19(7).  
Section 20.  
22  
23  
24  
   
[30] Counsel for the lessees, Mr Sullivan and Ms McKechnie, submit the Tribunal’s  
procedure is essentially an inquisitorial process. Counsel drew the Court’s attention  
to s 19(14) of the LVPA, which provides that every Land Valuation Tribunal is deemed  
to be a Commission under the Commissions of Inquiries Act 1908, and s 19(15),  
permitting the Tribunal to adopt such procedure as it thinks fit, subject to the LVPA  
and to any rules or regulations made under the Act. They point to the rules of process  
and procedure contained in the Land Valuation Tribunal Rules and the Commission’s  
powers of investigation, which include requiring the production of papers, documents,  
records or things for inspection and the power to call and examine witnesses.25  
Counsel submit that all parties were given similar treatment by the Tribunal across the  
four rating objection hearings.  
The legal tests  
[31] Rongotai has pleaded two grounds of review: apparent bias and  
predetermination. Both grounds are advanced on the same pleaded allegations and  
evidence.  
[32] Apparent bias and predetermination are distinct concepts. Apparent bias  
concerns the perception that the decision-maker was not impartial. The Supreme  
Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd described the test in  
the following way:26  
[Whether] a fair-minded lay observer might reasonably apprehend that the  
judge might not bring an impartial mind to the resolution of the question the  
judge is required to decide.  
[33] The Court articulated the two step test for determining a claim of apparent  
bias:27  
(a)  
first, the identification of what it is said might lead a judge to decide  
a case other than on its legal and factual merits; and  
(b)  
secondly, there must be “an articulation of the logical connection  
between the matter and the feared deviation from the course of deciding the  
case on its merits”.  
25  
26  
Commissions of Inquiry Act 1908, ss B(4)D.  
Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35  
at [3].  
At [4].  
27  
       
[34] The Court described more fully the features of a fair-minded lay observer:28  
The fair-minded lay observer is presumed to be intelligent and to view matters  
objectively. He or she is neither unduly sensitive or suspicious nor complacent  
about what may influence the judge’s decision.29 He or she must be taken to  
be a non-lawyer but reasonably informed about the workings of our judicial  
system, as well as about the nature of the issues in the case and about the facts  
pertaining to the situation which is said to give rise to an appearance or  
apprehension of bias.  
[35] Predetermination on the other hand arises where a decisionmaker has  
approached a decision with a “closed mind”, such that they are not amenable to  
persuasion on the issues engaged,30 or in other words, are “unwilling, honestly to  
consider changing [their] mind.”31 In Save Chamberlain Park Inc v Auckland City  
Council, Moore J noted that predetermination was conceptually different from bias,  
which is concerned with public perceptions as to impartial decision making.32  
Hearing Conduct  
[36] The essence of Rongotai’s claims is that based on the Tribunal’s conduct during  
and after the 2012 hearing and the content of its decisions, the Tribunal did not bring  
an impartial mind to its determination of the 2012 rating objections. The Court of  
Appeal has cautioned that the factual basis of bias allegations must be carefully made  
out and the inquiry must be rigorous.33  
[37] I propose to deal with the bias/pre-determination allegations in each of five  
separate categories. The following five categories are:  
(i) excessive intervention by the Tribunal and inappropriate engagement of  
the Tribunal with opposing parties’ Counsel;  
(ii) adverse comments by the Tribunal of witnesses and Counsel;  
28  
At [5].  
29  
Johnson v Johnson (2000) 201 CLR 488 at [33]; and Helow v Secretary of State for the Home  
Department [2009] 2 All ER 1031 (HL) at [2].  
CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA); and Save Chamberlain Park Inc  
30  
v Auckland Council [2018] NZHC 1462 at [180].  
Back Country Helicopters Ltd v Minister of Conservation [2013] NZHC 982, [2013] NZAR 1474  
31  
at [143].  
32  
Save Chamberlain Park Inc v Auckland Council, above n 30, at [180].  
Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [62].  
33  
       
(iii) the making of unfounded orders;  
(iv) the pursuit by the Tribunal of an irrelevant inquiry; and  
(v) the post-hearing conduct of the Tribunal.  
[38] Rongotai provided numerous examples under categories (i) and (ii), to which  
the lessees responded and under each of the categories, certain of those examples are  
examined.  
Excessive intervention  
[39] Mr Aharoni is the director and ultimate beneficial owner of Rongotai. He was  
called to give evidence at the 2012 hearing about the Pengelly transaction. Rongotai  
submits that the Tribunal treated Mr Aharoni in a hostile and over-bearing manner and  
permitted opposing Counsel to do the same. Rongotai submits the Tribunal was  
simply set against evidence or propositions supportive of Rongotai’s case theory.  
[40] Counsel for the lessees reject the suggestion that the Tribunal was hostile to  
Rongotai’s interests. They say this was all part of a robust hearing, which concerned  
a challenge to the veracity of the evidence given about the Pengelly sale from Mr  
Aharoni.  
[41] Of the examples provided by Rongotai, I deal with four examples where the  
Tribunal is alleged to have excessively intervened in an over-bearing manner and  
permitted opposing Counsel to do the same. The four examples are the evidential  
warning order to Mr Aharoni, the three perjury warnings also received by Mr Aharoni,  
the Tribunal’s intervention with Rongotai’s experts and the favourable expert Ms  
Watson, and engagement with opposing Counsel.  
Evidential warning to Mr Aharoni  
[42] The evidential warning arose during the cross-examination of Mr Aharoni  
about the reasons why his conditional offer to purchase the Pengelly properties fell  
       
over. For context, I set out the cross-examination question that prompted the Judge’s  
warning which unfolded as follows:34  
Q. Is that what you're saying, that the reason the Pengelly sales, in terms of  
your conditional offer fell over is because they are unhappy and that’s all to  
do with they own five properties?  
A. No that’s not what I said, I said they’re a non-experienced operator that  
wanted to liquidate their holding in that area and counter that, also I was told  
by … by Mr Young, that they dont like me, okay and in fact when I left the  
room I said, “Hi” to Ms Edwards just a couple of days ago, she ignored me,  
she doesn’t want to talk to me. Okay I'm not sure what I've done to her, she’s  
the one who liquidated the company in order to avoid paying me my rent. She  
is the director of a company, liquidated it to stop – to deceive creditors which  
I am one of them, or not deceive sorry, avoid paying creditors.  
[43] Mr Aharoni was then challenged about whether the agent had actually said that  
they did not like him. After the following passage of cross-examination, the Judge  
intervened and gave Mr Aharoni a warning that he may not give evidence. The  
relevant passage is as follows:35  
COUNSEL:  
Q. Mr Young didn’t say anything about, he told you they didn’t like you?  
A. Mr Young has told me –  
Q. Well we’ll have to get him back for that then, that’s all right okay.  
A. – they said they don’t like me.  
Q. Okay, now just be very, very clear as I proceed here, I don’t want long  
answers from you telling me your evidence.  
A. Well you're going to get the truth from me and whatever the truth requires  
you're going to get it.  
Q. No you [will] answer my questions or the Judge will intervene. Now just  
listen to my questions and answer them.  
THE COURT: JUDGE  
Q. Well wait a second, Mr Aharoni I'm only going to allow you to give  
evidence if you comply with the rules of evidence and that is you were asked  
a question, you answer that question concisely and accurately and truthfully.  
If you need further explanation you ask permission to give it. For the most  
part it’s only if it’s relevant to your answer. What I am getting from you at the  
34  
Emphasis added.  
Emphasis added.  
35  
moment is what I detect as a level of attitude towards the Court that you're  
going to tell us things, that is not your purpose before the Court. You are not  
counsel, you can only give evidence to the Court. If you don’t comply I will  
just exclude you. Now It’s entirely up to you but I want to see you answer the  
questions accurately and precisely. Counsel is entitled to that and it does not  
advance your case or this case at all if you're not prepared to do so.  
A. I apologise Your Honour but I do believe I've answered –  
Q. Just to answer the questions please.  
A. Which is what I've done.  
Q. No you haven’t and if you continue to do this I will not allow you to give  
evidence, do you understand?  
A. I do understand I'm sorry.  
[44] The Judge’s intervention to warn Mr Aharoni that he can give evidence only if  
he complied with the rules of evidence is perplexing. Mr Aharoni was asked an open  
question in cross-examination about his reason for saying that his conditional offer fell  
over. Mr Aharoni gives a full answer. Counsel challenged the answer by indicating  
that he would call the Bayley’s agent and then proceeded to tell Mr Aharoni that he  
did not want long answers from him “telling me your evidence”.  
[45] If Counsel puts a proposition for acceptance by a witness, the witness can  
correct or reject the proposition. If it is inaccurate, then a witness disagrees with it  
and usually explains why.36 The cross examination question was “Is that what you’re  
saying …?” Mr Aharoni disputed that that is what he had said and answered the  
question. There appears to be no basis therefore for the Judge to have warned Mr  
Aharoni that he would be excluded, if he did not comply with the rules of evidence.  
It is unclear which rules of evidence to which the Judge was referring, but he warned  
Mr Aharoni that he must answer a question “concisely and accurately and truthfully.”  
[46] Mr Aharoni then apologised, saying he believed he had answered the questions.  
He then received a further warning from the Judge that if he did not continue to answer  
the question, he would not be allowed to give evidence. Mr Aharoni apologised again.  
36  
Bruce Robertson (ed) Introduction to Advocacy (NZLS CLE Ltd, 2014) at 244–246.  
The three “perjury” warnings  
[47] Rongotai also submits that the Tribunal unfairly and improperly issued three  
warnings, that by clear inference were perjury warnings. Counsel for the lessees  
dispute that the Chair offered “the first warning” and say that the Chair simply  
cautioned the witness that he needed to be careful about saying what other witnesses  
had said.  
(a)  
First warning  
[48] Ms Quinlan, a trustee vendor, had been called by Bunnings to give evidence  
regarding the circumstances of the Pengelly sale. Her evidence was that she could not  
deny that an offer had been made. During the course of Ms Quinlan’s evidence, Mr  
Aharoni was excluded from the courtroom.37  
[49] Mr Aharoni gave evidence that he had made an offer. In cross-examination,  
Mr Aharoni was challenged about whether he made an initial offer to purchase the  
Pengelly properties in 2010 as the actual offer was unavailable, either being lost or  
with the vendors’ lawyer. Mr Aharoni was then asked these series of questions:  
CROSS-EXAMINATION CONTINUES: COUNSEL  
Q. Well that’s all right, we won't pursue that further, His Honour knows the  
position as do the rest of us but the point in referring to 2010 is from your  
answers, that’s a way of legitimising, is it, the integrity of your offer in 2012  
for $3.6 million, that’s the whole point of going on about these alleged offers.  
A. You again –  
Q. No wait till I finish. These alleged offers in 2010, that’s the point of  
referring to them.  
A. That’s not what I said. You are putting words in my mouth again. The  
point of – my offer is legitimate, it doesn’t need any help to legitimise it but  
the point is that the vendor at 2010 refused an offer for $3.1 million because  
in fact they said, “We will sell it for three and a half million dollars”, or  
whatever it is and I don’t think anyone denies it.  
Q. You’ve told us what they said.  
A. So that shows the vendor’s view.  
37  
See “Making of unfounded orders” (c) at [86]–[88].  
       
[50] It is at this juncture that the Judge intervenes, warning Mr Aharoni that he  
needs to be careful about his evidence because it contradicted the evidence of Ms  
Quinlan. Mr Aharoni, however, had been excluded from the Courtroom when Ms  
Quinlan gave her evidence, and says so. The passage is as follows:  
THE COURT: JUDGE  
Q. Now you're saying – I've got to advise you that you need to be careful to  
say what other witnesses have told the Tribunal because you’ve been sitting  
here and you heard Ms Quinlan tell us she doesn’t recall any offer from you.  
A. I was not here when Ms Quinlan –  
Q. Right, he was excluded. So the evidence of Ms Quinlan was that she has  
no recollection of receiving an offer from you and I think no recollection is  
the right words isn't it, Mr Scragg?  
[51] After clarification that Ms Quinlan did not have any recollection of what  
happened in 2010, Mr Aharoni was cross-examined again, on the basis that the  
witnesses had no recollection of his 2010 offer. Again, the Judge intervenes and says  
to Mr Aharoni:  
Q. Well you're making an assertion that you made an offer that’s denied by the  
other parties.  
A. Well this is what my testimony is and as confirmed by Mr Grant Young …  
[52] There was no reference by the Judge to the word “perjury” but it clearly was a  
warning by the Judge that he needed to be careful about his evidence. The appellation  
of whether it is a warning or a caution matters little in my view. Mr Aharoni was  
giving his evidence. It was for the Tribunal to decide on the credibility of his evidence  
in making its determination. Mr Aharoni simply did not agree with the propositions  
that were being put to him in cross-examination about Ms Quinlan’s evidence. More  
pertinently, he could not comment on what Ms Quinlan had said as he had been  
excluded from the courtroom during her evidence. On any view of the matter, the  
warning from the Judge was not justified. Mr Aharoni disagreed with the evidence of  
the other witnesses and he was giving evidence to that effect, as he was entitled to.  
(b)  
Second warning  
[53] During further cross-examination of Mr Aharoni about his view of the vendor’s  
motivation in selling the Pengelly properties, the opposing Counsel put to Mr Aharoni  
that “Ms Quinlan made it quite clear in her evidence they weren’t remotely desperate”  
to sell and asked Mr Aharoni how that confirmed his view. Mr Aharoni again said that  
he could not comment on what Ms Quinlan had said, as he was not in the room when  
she gave her evidence. It was at this point that Counsel rebuked Mr Aharoni for  
criticising the Judge. This led to the Judge’s second warning, which Rongotai submits  
was a perjury warning. The passage is as follows:  
CROSS EXAMINATION CONTINUES: COUNSEL  
Q. Well we heard here, Ms Quinlan made it quite clear in her evidence they  
weren't remotely desperate. In fact she says so. She addresses your evidence  
A. Well this is not, this is –  
Q. No don’t interrupt me. She addresses your evidence directly by way of  
saying I now address Mr Aharoni’s evidence and she says we were not  
remotely desperate.  
A. Well –  
Q. So how did that confirm your view?  
A. Sorry. If you want me to comment on what Ms Quinlan said you have -  
you should allow me to be in the room when she was talking, so I can't  
comment on what she said.  
Q. Well don’t criticise the Judge please. That’s not –  
A. Sorry?  
Q. You’ve been told already do not criticise the Tribunal. That’s not how we  
operate here.  
A. I’m not. I’m not criticising the Tribunal –  
Q. Well that’s - the decision was made there.  
A. – whatsoever. I’m criticising you.  
Q. Get on with answering the question.  
A. The question –  
   
THE COURT: JUDGE  
The job is not for you to criticise anyone. The job is for you to answer  
questions. I mean the transcript of this is going to be fascinating reading in  
the superior Court. You need to focus and I haven’t given you a formal  
warning but some of your answers are almost directly contradictory to your  
evidence. I’m not going to go into it but you need to be careful in your answers  
now and I think you need to be more careful in your… I don’t think you should  
get into, well it’s not my job to advise the witness what to do but I think you  
are veering into very dangerous territory. Can I put it that way.  
COUNSEL:  
Can I ask Sir that Your Honour does consider a warning because I might wish  
to go back to it if this continues in this vein.  
THE COURT: JUDGE  
Q. Okay. Well if it carries on I’m just, I have given the warning yesterday as  
I recall, a general warning. This is a more serious warning but I’m not going  
to give what, I don’t want to refer to the word. People - all counsel know here  
what I mean about the warning. I gave it to one other witness. But at this stage  
I don’t think it’s gone that far but he’s getting dangerously close. So I think  
you should focus not on [Counsel] or on the Tribunal or on anyone else. Focus  
on your answers in giving a concise and truthful answer to the questions.  
A. Can I ask you Your Honour to tell me where is my evidence now  
contradictory to my evidence before?  
Q. This isn't a query. This matter will be dealt with, you know, on appeal if  
you appeal or otherwise, if you don’t appeal, then we will have to deal with it  
in the normal way. Carry on [Counsel].  
CROSS EXAMINATION CONTINUES: COUNSEL  
And nobody in the Tribunal is in the witness box or will be Mr Aharoni, this  
is not a general discussion… you'll have to take that up with your counsel.  
The Tribunal then indicated it was prepared to take a break for that purpose and said:  
I have been clear that I’m not giving him, and I don’t want to use the word,  
people know what I’m talking about. I’m only giving him a general warning  
at this stage, but … he is veering close to a proper warning.  
The Tribunal then told opposing Counsel:  
you can ask for one [that is, a “proper warning”] if you consider he goes over  
the line again. Well, I’m not going to say again, I don’t know that he has  
actually, I haven’t examined the transcript carefully.  
[54] The Tribunal then said: “all counsel know here what I mean about the warning”  
and that Mr Aharoni needed to give concise and “truthful” answers.  
[55] From the above interchange, the Judge accepted that he had given Mr Aharoni  
a “general warning” the day before. I refer to it as the first warning. The Judge calls  
the above intervention “a more serious warning”, which he then calls “a general  
warning at this stage” (the second warning) but says that Mr Aharoni is veering close  
to a proper warning. I consider it is plain that the Judge is talking about a perjury  
warning following Counsel’s rebuke that Mr Aharoni was criticising the Tribunal. In  
fact, Mr Aharoni’s answer was correct. He could not properly comment on Ms  
Quinlan’s evidence when he had been excluded from the courtroom at the time she  
was giving it.  
(c)  
Third warning  
[56] Again, the issue of inconsistency between Mr Aharoni’s evidence and that of  
the vendor gave rise to the third warning to Mr Aharoni.  
[57] This time, Mr Aharoni was challenged about another aspect of Ms Quinlan’s  
evidence. This was whether Edwards Hardware Holdings Ltd was an Edwardsfamily  
company. Mr Aharoni had initially thought it was and had said so in his brief of  
evidence. He was challenged by Counsel that his evidence was therefore untrue. The  
Judge then questioned Mr Aharoni about whether he accepted that his statement was  
untrue. Mr Aharoni said that he could not tell the Tribunal whether it was true or not  
because he received this information from his lawyers. At that stage, the Judge said:  
Q.… this is, we’re getting close to the warning now. You’ve told us everything  
you say in this brief is true. Is that true or not?  
A. I believe that this statement is correct but I received this information from  
a research from my lawyer. If he ma[d]e a mistake then I take responsibility  
for this mistake.  
[58] Cross-examination is then recommenced by Counsel but the Judge interposes  
and continued the questioning of Mr Aharoni. Before taking a break, to allow Mr  
Aharoni to consult with his solicitor, the Court consulted with opposing Counsel by  
saying:  
COURT:  
…do you think I’ve got to the P-word warning or not?  
   
COUNSEL:  
I do Sir, yes I do.  
THE COURT:  
You know I don’t, it’s not a land I venture into very frequently at all, in fact, I  
think this would be the second warning, probably only the third warning I’ve  
ever given.  
COUNSEL:  
And two of them in this case Sir.  
THE COURT:  
Two of them in case, I am reluctant to get to that point … I am reluctant to do  
it, I must say.  
….  
There’s a cut and thrust to all of this and I think [Opposing Counsel] is making  
progress in any event and I don’t know that I need to go that far but to be fair  
I think Mr Aharoni needs to reflect on what else in his evidence may not be  
correct because we’re going to be going there very soon.  
[59] The Judge then invites Counsel for Rongotai to have a discussion with Mr  
Aharoni.  
[60] I accept Rongotai’s submission that Mr Aharoni’s evidence in relation to the  
Edwards Family company in his brief was mischaracterised as “untrue”. Mr Aharoni  
acknowledged that he had obtained the information from his lawyer and that if it was  
incorrect, he did not think he could change his evidence. Mr Aharoni goes on to give  
a perfectly adequate explanation as to who had given him the information, but explains  
that despite the wrong company name being inserted, the company was in fact  
liquidated and the tenants had stopped paying rent because of the liquidation.  
[61] On a review of the transcript passage above, I consider there was no basis for  
him to receive a perjury warning, particularly as he had been excluded from hearing  
Ms Quinlan’s evidence. His own Counsel advised the Tribunal that he had not  
discussed other witnesses’ evidence with Mr Aharoni since the trial began “given the  
various exclusion orders that had been in place.” It is also unusual, as Cooke J noted  
in the interim decision, and in my view, inappropriate, for a Judge to ask opposing  
Counsel whether he should give a witness for another party, a perjury warning.38  
Interventions with Rongotai’s experts  
[62] I turn to consider some examples of the Tribunal’s interventions with  
Rongotai’s two expert valuers Mr Horsley and Mr Butchers, when they gave their  
evidence. These examples also show the Tribunal’s unorthodox engagement with  
opposing Counsel.  
[63]  
In relation to Mr Horsley, a similar issue arose as it did in Mr Aharoni’s  
evidence, regarding his understanding of the ownership of Edwards Hardware  
Holdings Ltd. The Tribunal warned him “to be very careful with [his] answers”, as  
his “evidence ha[d] shown to date that there are some clear differences between the  
evidence [he] gave”. This was a reference to alleged differences between Mr Horsley’s  
brief of evidence and his oral evidence related to this ownership point.  
[64] Rongotai submit that the Tribunal’s warning to Mr Horsley could have been  
reasonably capable as being interpreted as a challenge to his honesty. The lessees,  
however, assert that Mr Horsley had to accept that there was an incorrect reference in  
his brief to the Edwards Family owning Edwards Hardware. It had to be removed  
from his brief and Mr Horsley accepted that he had no evidence to say that the vendors  
were under pressure to sell Pengelly to realise funds. He accepted also that his brief  
reflected understandings from Mr Aharoni, when the reference should have been to  
Mr Aharoni and his lawyers.  
[65] Any differences in the written witnesses’ briefs of evidence and their oral  
evidence forms part of the process of examination of witnesses, where any corrections  
that need to be made arise and are explained during the witnesses’ oral evidence.  
Indeed, opposing Counsel reinforced this, when he said to Mr Horsley: “There’s  
nothing wrong with modifying your evidence as it’s examined.” It is unusual  
therefore, for a Judge to caution a witness about correcting his brief of evidence after  
the identification of mistakes during his oral evidence.  
38  
Rongotai Investments Ltd v Land Valuation Tribunal, above n 12, at [20(d)].  
   
[66] There are numerous examples to which I was directed, where the Tribunal  
challenged Mr Horsley’s status as an independent expert witness. For example, the  
Tribunal suggested that Mr Horsley had “spent so much effort on trying to dissuade  
QV from [the Pengelly sale] being taken into account”. Of Mr Horsley’s opinion that  
the Pengelly sale was not a bona fide transaction, the Judge asked, “did someone ask  
you to say [that]?”. Following Mr Horsley’s response confirming they did not, the  
Judge said “Well why did you use that phrase? … I’ve never heard a valuer use it”.  
[67] The Judge intervened in the cross-examination of Mr Horsley to pursue a  
“wider issue” and told Mr Horsley “it is unusual for a witness to challenge Counsel.”  
The Judge said “I think you owe [Counsel] an apology myself” and then Mr Horsley  
apologised.  
[68] The Tribunal repeatedly asked Mr Horsley and Mr Butchers to answer  
questions regarding the provenance of the information upon which they relied in  
giving their evidence. For example, to Mr Butchers, the Judge asked whether he had  
ever “sat in a meeting with those people [being Mr Aharoni’s lawyers, Mr Aharoni and  
Mr Horsley] to discuss this matter” and “did you ever have a meeting, the three of you  
[Mr Aharoni, Mr Horsley and himself], to discuss the preparation for this case and the  
evidence you would give?”  
[69] I note that during the cross-examination of Mr Horsley, after the Judge made  
exclusion orders for the Rongotai remaining witnesses, the Judge intervened in  
opposing Counsel’s cross-examination, reframed Counsel’s question, checked that  
Counsel was happy with the reframed question, and proceeded to question Mr Horsley  
for three and a half pages of the transcript.  
[70] The exchange was as follows:  
THE COURT:  
So I think what [Counsel is] asking you, I hope you will be happy with the  
reframing of the question, to establish for yourself why it was not a market  
transaction. Are you happy with that question? [Counsel]?  
COUNSEL:  
Very happy with that question.  
[71] The Judge continued to question the witness, interpolating his questions with  
that of Counsel, again giving the impression that the Judge’s questions were being  
pursued jointly with Counsel.  
[72] The lessees submit that there is no reason why a Judge should not pursue  
answers on matters which had been given by other witnesses or where witnesses had  
resiled from “Rongotai’s Pengelly’s ‘theory.’” However, it is for Counsel to cross-  
examine witnesses, not the Judge.  
[73] The unfortunate pattern emerging from the frequent interventions by the Judge,  
particularly in the course of opposing Counsel’s cross-examination, is that the Judge  
has joined with Counsel to cross-examine the Rongotai witnesses. The nature of the  
questions asked of both Mr Aharoni, Mr Horsley and Mr Butchers by the Judge gives  
rise to an inference that he considered Mr Horsley and Mr Butchers were not  
independent experts and that Mr Aharoni was giving untruthful evidence.  
Engagement with opposing Counsel  
[74] As part of the Chair’s intervention in the questioning of witnesses, there are  
several examples where the Judge expressly refers to leaving matters in the hands of  
Counsel, after he has completed questioning of witnesses. In the same way, Counsel  
refers to working on issues together, with the Judge.  
[75] Ms Watson was called by QV, as its valuer, who had undertaken her own  
independent assessment. She was sympathetic to the Rongotai position, in classifying  
the Pengelly sales as “tainted” or below market value. The Judge intervened during  
the cross-examination by opposing Counsel on numerous occasions. During the cross-  
examination, QV’s lay representative interceded, asking that the witness be given an  
opportunity to finish her answers. He questioned whether the cross-examination was  
relevant, and objected to the way in which opposing Counsel had implied that Ms  
Watson was making things up to defend her position, embellishing facts and engaging  
in a “trumpeting of independence”.  
[76] Opposing Counsel interjected during QV’s objection, stating that QV’s  
representative needs to be aware of the basis for making objections and that it was not  
   
a chance for saying he “doesn’t like the question.” The Judge did not make a ruling  
or make any comment on this exchange between Counsel and the representative. After  
concluding his questioning of Ms Watson, the Judge then said to opposing Counsel:  
Well I can only take it so far [Counsel]. I have to leave it to your tender care  
again.  
[77] When the lay representative for QV objected on the grounds that opposing  
Counsel was harassing the witness, trying to make her uncomfortable, and that it was  
not fair on the witness, the Tribunal said that it had not been following the questioning.  
Yet, the Tribunal later stated that Ms Watson’s evidence had given rise to a serious  
matter that “may have further ramifications beyond this decision” and that the Valuer-  
General might be required to “explain his position”.  
[78] Further illustrations of the Judge engaging with opposing Counsel unfold as  
follows.  
[79] The day after Mr Aharoni was excluded from the hearing, the Tribunal  
indicated that a decision as to whether Mr Butchers ought to be excluded from the  
hearing was for the opposing Counsel to determine:39  
…at this stage we haven’t got to a point I think that creates any particular  
problems but its up to you [Counsel].  
[80] During the course of cross-examination of Mr Horsley by opposing Counsel,  
the Judge had intervened repeatedly with his own substantial questioning. After a  
number of interpolations in the cross-examination by the Judge, opposing Counsel  
challenged Mr Horsley that information he said he received from Mr Aharoni had  
instead been provided by Mr Aharoni’s lawyer. Counsel then said to the witness:40  
So that is an error then, just as we work through this, the Judge and me  
together…  
And:  
Even after all we’ve been through, His Honour and myself, pointing these  
things out you’re still grimly holding on…  
39  
Emphasis added.  
Emphasis added.  
40  
[81] Similarly, the Judge also intervened frequently during the cross-examination  
of Mr Butchers. The Judge said that he was “happy” to delete aspects of the expert’s  
brief and said to opposing Counsel:  
Another one for the red pen I’m told.  
Following the deletion, the Judge then said:  
Carry on [Counsel], there won’t be much left soon.  
[82] It is correct, as the lessees submit, that inviting a witness to delete parts of their  
written evidence that have no foundation is common and is adopted in trial practice,  
where appropriate. They submit such deletion was necessary in relation to Mr  
Butcher’s evidence, who could not establish any evidential or rational connection to  
the Pengelly theory he adopted. He then also had to acknowledge he could not  
contradict Ms Quinlan’s evidence.  
[83] The issue here, however, is the engagement of the Tribunal with opposing  
Counsel. It is one thing for Counsel to ask a witness to delete portions of their brief  
of evidence, which are no longer sustainable. It is another, however, for a Judge to  
make a deprecatory retort about “the red pen” and give opposing Counsel  
encouragement to continue in like vein, so “there won’t be much left [of the brief]  
soon.” Those asides, together with the Judge’s remarks that he is leaving the  
questioning of a witness during Counsel’s cross-examination up to Counsel or  
Counsel’s “tender care again,” gives the impression of a Judge who has participated  
in Counsel’s cross-examination and is partisan.41  
Adverse comments  
[84] The second complaint about the Tribunal’s hearing conduct concerns the  
adverse comments made by the Tribunal, or made by opposing Counsel without  
41  
A further example was pleaded, where opposing Counsel cross-examined Mr Aharoni about his  
Local Government Official Information Act (LGOIA) request about QV’s use of a valuer’s firm,  
suggesting that Mr Aharoni was looking for ways to impugn or malign QV, its valuer and its  
relationship with the firm. The Judge pursued Counsel’s line of questioning challenging Mr  
Aharoni about his motivation for the request for “15 years of invoices”, his “right” to do so, and  
its relevance. Neither the LGOIA request or any responses were part of the evidence before the  
Tribunal.  
   
restriction, about Mr Aharoni and any witnesses who gave evidence in support of his  
position.  
Criticism of witnesses  
[85] During the cross-examination of Mr Aharoni, opposing Counsel compared Mr  
Aharoni with Donald Trump, by suggesting Mr Aharoni adopted the Trumpian  
approach in answering questions. The following day, Mr Aharoni referred back to the  
unfortunate analogy. Counsel again asserted that Mr Aharoni was worse than Donald  
Trump, because Donald Trump seeks to legitimise falsities by saying things “only five  
times” whereas “I think you are a bit more than that.” Mr Aharoni responded, “Oh,  
well it’s more derogatory now. I’m worse than Donald Trump?”  
[86] It is the Judge who has the discretion to disallow derogatory comments or  
unfair or improper questions of witnesses. Section 85 of the Evidence Act 2006  
provides the Judge with a wide discretion to “disallow or direct that a witness is not  
obliged to answer any question that the Judge considers improper, unfair or  
misleading…”  
[87] In the exchange about Mr Trump, the Judge did not curb Counsel’s criticism  
of the witness, despite the witness, Mr Aharoni, describing it as “derogatory”. Nor did  
the Judge exercise his discretion to disallow such questions of the witness for being  
unfair or improper. The omission to do so leaves an impression that the Tribunal  
condoned the imputation that Mr Aharoni legitimised false statements, more so than  
Mr Trump.  
[88] The Judge also made critical comments. During Rongotai’s Counsel’s cross-  
examination of Mr Pengelly concerning his email exchange with Mr Aharoni’s agent,  
about whether “an email offer” not a “written offer” was capable of enforcement by  
Mr Pengelly, the Judge interrupted stating: “Good luck enforcing that one Mr  
Pengelly.”  
[89] The Tribunal was also critical of Ms Watson during her cross-examination,  
implying she had colluded with Mr Aharoni. Although Ms Watson gave expert  
valuation evidence on behalf of QV, her evidence favoured the position taken by  
   
Rongotai at the 2012 hearing, by questioning the reliance on the Pengelly sale as a  
comparator for valuation purposes.  
[90] It is the Tribunal’s reaction to this aspect of her evidence that is in contention.  
First, the Tribunal prevented Ms Watson from refreshing her memory by reference to  
contemporaneous notes. The Tribunal further directed Ms Watson not to check her  
notes during an adjournment.  
[91] This direction to an expert witness is troubling. If Ms Watson’s recollection  
was under scrutiny, she should have been permitted to check her notes to clarify her  
evidence. She was an expert called by QV to give her opinion on QVs values with  
which she did not always agree.  
[92] Second, the Tribunal questioned Ms Watson’s independence by making  
inappropriate adverse comments. The Judge said of persons in Ms Watson’s position:  
“obviously they are paid to do the role. They don’t do it for free”; “they’ll have some  
obligation to support objections. Otherwise they wouldn’t be here”; and “because I’m  
assuming Ms Watson’s been paid to be here by QV”.  
[93] I consider that the comments made by the Judge in the context of Ms Watson’s  
role in giving evidence at the hearing give rise to an inference by the Tribunal that she  
was not an independent expert and had a questionable motive for giving evidence in  
support of the objections. This became manifest in the Tribunal’s interim decision  
where the Tribunal describes Ms Watson’s answer to a question as “convenient.”42  
Criticism of the Rongotai parties  
[94] It is submitted that the Tribunal imputed ulterior motives to Rongotai and their  
Counsel. There are two parts to this challenge. The first is the way in which the  
Tribunal heard and refused Rongotai’s recusal application. The second is the  
Tribunal’s criticism of the Rongotai parties’ conduct in the previous 2007 hearing and  
the Tribunal’s conduct towards Counsel in the 2012 hearing.  
42  
The 2012 interim decision, above n 1, at [34].  
   
(a)  
The recusal application  
[95] Prior to the Tribunal’s hearing of the 2012 objections, Rongotai applied for the  
recusal of Tribunal member Gordon, on the basis that there was a previous close  
familial relationship with Rongotai’s freshly appointed Counsel Mr Scragg, namely,  
his former father-in-law. There was no conflict in the former 2007 hearing, as different  
Counsel appeared for Rongotai.  
[96] The Tribunal declined to apply the Guidelines for Judicial Conduct, including  
the guideline that disqualification should occur where a party, lawyer, or witness of  
disputed facts is a close relative or domestic partner of the judge. The Judge simply  
stated Members are “not judiciary. They don't have tenure. They don't have all of the  
other things. They’re not judicial officers.”  
[97] During the course of hearing the recusal application, Rongotai submits the  
Tribunal treated both the application and Rongotai’s Counsel as attempting to  
manipulate the Tribunal’s processes. The Tribunal questioned whether Mr Scragg’s  
involvement in the 2012 hearing was “deliberate,”43 asked Counsel when was it  
decided that he would lead the Rongotai case;44 and suggested there was a “sense of  
forum shopping” about the application. Rongotai submit that the Tribunal manifested  
a view that the application was made to manipulate the Tribunal’s processes, when  
that was not a reasonably available interpretation of the application.  
[98] I am unable to uphold Rongotai’s submission on the recusal decision.  
Although the Judge’s comments could have been more judicious and less critical,  
Rongotai’s Counsel was replaced for the 2012 hearing, when the four hearings were  
strictly timetabled for hearing before the same three-person Tribunal. The member  
was part of the three-person panel; he was not the only decision-maker; and the  
familial relationship was somewhat distant. In my view, the decision was reasonable  
in the circumstances.  
43  
The Tribunal said the recusal application seemed “on the face of it to show a deliberateness on the  
part of Rongotai in that respect.”  
The Tribunal’s question was “When was that intention formed that you would do that? Before the  
44  
2007 hearing?”; and “when was that discussed? Have you got anything in writing that recorded  
that?”  
   
(b)  
Criticism of Rongotai’s Counsel’s conduct  
[99] Rongotai raise four matters in relation to the Tribunal’s criticism of Rongotai’s  
conduct during the 2012 hearing.  
[100] First, the Tribunal characterised Rongotai’s Counsel’s conduct during the 2007  
hearing as involving “a fair bit of tactics” and stated “this is not the first time we’ve  
been through this little dance”.  
[101] Second, during the 2012 hearing, when Rongotai’s Counsel was cross-  
examining the lesseesexpert, the Chair interrupted. He said that Counsel was “almost  
filibustering” and interrupted Counsel in his questioning, saying that Counsel had  
“rejected a whole series of things” and cut off Counsel’s response to that remark.  
When Counsel cited an authority he considered relevant, the Chair joked about it  
relating to a boat sale and repeated his own view of what was relevant. Counsel then  
sought leave to put one more question to the witness.  
[102] Third, during Rongotai’s Counsel’s cross-examination of the QV witness, Ms  
Watson, as to the economic impact of Glasgow leases, the Tribunal interrupted and  
accused Rongotai’s Counsel of spending “the last 15 minutes simply repeating parts  
of an Act” and complained it had “sat through hours of this now”.  
[103] Fourth, a terse exchange between the Chair and Rongotai’s Counsel over the  
basis for Counsel’s questioning, resulted in the Judge abruptly taking an adjournment  
during Counsel’s cross-examination.  
[104] Counsel for the lessees contest the characterisation of the Tribunal’s exchanges  
with witnesses and Rongotai Counsel as manifesting apparent bias or  
predetermination. In a detailed rebuttal of each of the allegations, both Mr Sullivan  
and Ms McKechnie contend that a number of the Tribunal’s interventions were  
warranted, particularly the allegation about an adjournment the Tribunal took during  
the cross-examination by Rongotai’s Counsel.  
[105] They submit that the examination was repetitious, including Counsel for  
Rongotai reading back to Ms Watson parts of her evidence and a legislative provision.  
   
The Judge intervened to remind Counsel that these matters had been previously  
covered and that Rongotai’s cross-examination was achieving nothing of relevance  
before the specialist Tribunal. The adjournment, they say, was in response to  
Counsel’s questions and the Tribunal, given the apparent failure to get its position  
across, took an adjournment and returned telling Counsel what was expected from  
questions in cross-examination. This, the lessees say, was reasonable.  
[106] It is not objectionable that a Judge controls the extent of cross-examination, if  
it is repetitive45 or irrelevant. However, the way in which a Judge intervenes should  
avoid rudeness, be courteous and civil.46 The manner in which the Judge dismissed  
the reference to the case raised by Rongotai’s Counsel may not have been polite or  
courteous, but I am unable to assess whether the Tribunal was being unduly harsh or  
injudicious in requiring Counsel to keep cross-examination relevant and to the point.  
[107] Mr Sullivan also submits that all Counsel, from the most experienced QC to  
junior Counsel were given similar treatment across the four rating objections hearings.  
This, Counsel say, is demonstrated in the transcript where the Tribunal actively  
engages with all Counsel, not just Rongotai, and that all Counsel were subjected to the  
Tribunal’s strong questioning. They submit it was a robust style of hearing, with a  
Judge who had a “very interventionist style”, even for a Commission of Inquiry. Mr  
Sullivan submits that the Judge adopted the socratic method during all submissions  
and took over sections of questions of Counsel regularly.  
[108] Ms McKechnie urges the Court to consider the judicial conduct of the Tribunal  
in the round, noting that the Tribunal did not spare Bunnings from criticism during the  
hearing, nor did it favour the opposing Counsel. Three examples were identified. The  
45  
Section 85(1) Evidence Act 2006 allows a Judge to disallow any question the Judge considers  
“needlessly repetitive.” It encompasses judicial controls on witness examination … to ensure the  
just and orderly conduct of trials and the rational ascertainment of facts” as contained in s 6(a):  
see Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence Act and Analysis (4th ed,  
Thomson Reuters, Wellington, 2018) at [EV85.03].  
46  
Shimon Shetreet and Sophie Turenne Judges on Trial: The independence and accountability of  
the English judiciary (2nd ed, Cambridge University Press, Cambridge, 2013) at [5.25]. The  
authors canvass cases on judicial rudeness. In England, the nature of the rudeness by the Bench  
has been considered by the Courts, particularly in criminal trials. In R v Ptohopoulos (1968) Crim  
LR 52, a rude interruption by the Judge to defence Counsel on the basis he is wasting time with  
irrelevant questions to prosecution witnesses may not justify quashing a conviction. The question  
is whether the Judge’s conduct disparaged Counsel, not his case: see R v Hircock [1970] 1 QB  
67.  
 
first is where the Tribunal assisted Mr Scragg for Rongotai by intervening in his cross-  
examination and directly questioning the witness. The Tribunal apologised for  
intervening but said it was for clarity and Counsel comments “no, that’s so helpful  
Sir.” The second is where the Judge admonishes opposing for objecting during Mr  
Scragg’s cross-examination and the third was where opposing Counsel objected to Mr  
Scragg’s cross-examination of Ms Quinlan, which was repetitive. The Judge  
disallowed the objection.  
[109] I have considered these examples and compared them with the Rongotai  
allegations and claims. In my view, there is a distinct difference between the above  
three examples and the criticism and questioning of Rongotai’s witnesses (and those  
supporting Rongotai’s position) as set out above. Intervention by a Judge to clarify a  
point, as in the first example, has always been an acceptable judicial intervention,  
although I note it was during Counsel’s cross-examination. The other two examples  
involve the Tribunal disallowing opposing Counsel’s objections. These latter two  
examples are evidential rulings which must be made by the Judge in the course of  
Court hearings. What is at issue here, however, is whether the Judge’s interventions,  
comments and conduct were impartial and fair. The examples show the Judge  
engaging with opposing Counsel’s cross-examination to the point where the Judge  
takes over cross-examination and hands it back to Counsel. It is not just one example;  
it is several.  
[110] As part of my consideration, I have examined the frequency of the Judge’s  
interventions. It is correct, as the lessees’ Counsel submits, that the Judge did  
intervene frequently throughout, and a familiarity developed among the Judge and  
Counsel over an extended period of common hearings. However, the interventions  
during Mr Aharoni’s cross-examination are concerning.  
[111] Mr Aharoni commenced his evidence at 4 pm on 28 August and cross-  
examination began at 4.30 pm. In the space of one hour and fifteen minutes there were  
at least 20 interventions by the Judge, excluding questions of clarification.  
[112] I am unable to accept the lessees’ submission, therefore, that their three  
examples are equivalent. I also do not accept that the examples raised by Rongotai  
are “cherry picking.”  
The exclusion orders  
[113] Rongotai allege that the Tribunal made unfounded exclusion orders during the  
course of the hearing.  
[114] The Tribunal made orders excluding Mr Aharoni and his expert, Mr Butchers,  
from the Courtroom during the evidence of Mr Horsley, the other Rongotai expert. Mr  
Aharoni was also excluded during Ms Quinlan’s evidence.  
[115] As Mr Horsley was being cross-examined about the nature of the Pengelly  
sales, the Judge interrupted Counsel’s question to say:  
I think we’ve got to the point now where I’m sufficiently concerned. I think  
we have to exclude other witnesses that you’re likely to call [Rongotai’s  
Counsel].  
[116] The Judge stated that he believed he needed to give the witness a warning too,  
so he asked that all witnesses who have yet to give evidence, to leave the Court. When  
Rongotai’s Counsel asked whether that applied to Mr Aharoni, the Judge said,  
“definitely Mr Aharoni” and Mr Butchers. It was also to include the Bayley’s agent  
and anyone else who was going to give evidence. At that juncture, these were the only  
other witnesses to give evidence. These were all witnesses to be called by Rongotai.  
In insisting that Mr Aharoni needed to leave the Court immediately, the Judge told his  
Counsel to advise him that he is not to discuss the matter with anyone else.  
[117] The lessees submit that the exclusion orders were made by consent. I am  
unable to accept that submission. Mr Scragg was not asked if he consented to the  
exclusion order. He sought clarification about the exclusion of Mr Aharoni being his  
party’s representative and accepted the Court’s direction to give Mr Aharoni the advice  
as the Judge directed.  
   
[118] I accept Rongotai’s submission that the exclusion warning itself was  
reasonably capable of being interpreted as a challenge to the honesty of the witness  
and that the exclusion of Mr Aharoni left Rongotai’s Counsel without a client to  
provide instructions on the evidence.  
[119] The witness exclusion orders were made in the second week, on the sixth day,  
when the Rongotai witnesses were yet to be called. The exclusion orders therefore  
affected only those witnesses being called for Rongotai, including Mr Aharoni. No  
party had applied for their exclusion, but after cross-examination finished on the  
Pengelly sale topic, the Judge asked opposing Counsel whether Mr Aharoni and Mr  
Butchers could re-enter the courtroom.  
THE COURT:  
Well, if we’ve finished with the topic can I advise…that Mr Aharoni and Mr  
Butchers can no[w] re-enter?  
COUNSEL  
Yes, most certainly Sir.  
[120] During the cross-examination of Mr Young, Rongotai’s Counsel drew to the  
Judge’s attention that he realised Mr Butchers was in the room and in light of the  
Judge’s order excluding some of the witnesses for the Pengelly sales cross-  
examination, he sought guidance. The Judge then asked opposing Counsel “do you  
want him excluded?” Counsel responded “no, I don’t really mind sir, he’s an expert.”  
The Judge then says:47  
… That’s why I excluded [him] yesterday because it got to issues of credibility  
… So at this stage we haven’t got to a point I think that creates any particular  
problems but its up to you [Counsel].  
[121] There are three aspects of these exclusion orders that are troubling. First, they  
were made on the Judge’s own motion. No party sought them. Second, only Mr  
Aharoni and the Rongotai witnesses, including an expert, were excluded. No other  
parties’ witnesses were excluded. Third, the Judge engaged with opposing Counsel to  
ask whether (a) he wanted the Rongotai expert excluded and (b) whether the excluded  
witnesses could re-enter the Courtroom.  
47  
Emphasis added.  
The pursuit of an irrelevant inquiry  
[122] It is also alleged that the Tribunal engaged in the unnecessary and irrelevant  
inquiry as to the motive behind Mr Aharoni’s offer regarding the Pengelly properties.  
In its interim decision, the Tribunal dedicated an entire section of the judgment to “Mr  
Aharoni’s purpose in taking the option”. The Tribunal was “satisfied that [Mr  
Aharoni] had no intention of acquiring [the Pengelly properties] from the vendors at  
his offered conditional contract price”48 and that he had “seized upon these events to  
seek to argue without any substance before this Tribunal that there was something  
wrong with the Pengelly transaction and it should be ignored.”49  
[123] The Tribunal described Mr Aharoni’s role as “certainly highly dubious” in  
using his representative to make enquiry and send an email after the date on which he  
knew the new contracts were entered into. The Tribunal stated he did so “to try and  
argue for a higher per square metre value for the Rongotai land”.50 The Tribunal  
considered Mr Aharoni’s purpose in doing so was not in relation to the purchase of the  
property “but rather for a collateral purpose.”51  
[124] These findings by the Tribunal, as Rongotai submits, were seriously adverse,  
implying a course of conduct which was either dishonest or deceitful and were findings  
which were irrelevant. Despite having made those findings in unequivocal terms, the  
Tribunal then expressly stated that it was unnecessary for them to reach any conclusion  
about Mr Aharoni’s purpose in taking the option. The Tribunal says:52  
Nevertheless, we want to be very clear that it is not necessary for us to reach  
that conclusion to conclude that the Pengelly transaction was entirely a market  
and relevant transaction.  
[125] The Tribunal also makes adverse credibility findings and comments in relation  
to Ms Watson without the foundation to do so. She had given evidence that the  
Pengelly sale should be included but that it should be given “very limited weight”53  
and under cross-examination clarified that it was Trevor Pengelly, not Warren  
48  
The 2012 interim decision, above n 1, at [41].  
At [42].  
At [44].  
At [44].  
49  
50  
51  
52  
At [45].  
53  
The Tribunal’s 2012 decision, n 2, at [6].  
   
Pengelly, she spoke to about the offers of sale. The Tribunal simply concludes this  
was “a convenient answer” without any reasons for this finding.  
Post-hearing conduct  
[126] Rongotai submits that the Tribunal’s intentions in releasing the interim  
decision on 12 September and the final 2012 decision when proceedings were being  
taken by Rongotai in the High Court, were indicative of its apparent bias towards  
Rongotai, given that the Tribunal had expressed adverse views of Rongotai in the  
interim decision.  
[127] Specifically, Rongotai alleges that the Tribunal issued the interim decision  
knowing or apprehending that the High Court might become seized of an application  
for leave to transfer the 2015 hearing to the High Court and that an application for  
judicial review had been filed with the High Court. The Tribunal addressed its reasons  
for issuing its interim decision two weeks after the hearings were completed (on 29  
August). The first reason was that witnesses preparing for the 2015 and 2018 hearings  
should know that the Tribunal considered the Pengelly sale was relevant. Secondly,  
the Tribunal considered the parties were able to have the benefit of the Tribunal’s view  
in relation to the leave and appeals before the High Court and the application for  
review.  
[128] In his decision declining interim relief, Cooke J noted that the release of the  
decisions by the Tribunal seemed a “little unusual.” He considered that it was arguable  
that the interim decision brought to the attention of the High Court the Tribunal’s  
adverse views of the Rongotai parties:54  
It is in this [oral interim] decision that the adverse credibility findings were  
made. Arguably the purpose of the decision was to make these adverse views  
known to the parties and this Court. ...  
[129] In relation to the substantive 2012 decision, these judicial review proceedings  
had been issued and served on the Tribunal, with a claim for an order that the Tribunal  
not release its substantive decision. The Tribunal then released the substantive  
decision the afternoon on which the judicial proceedings were served, despite the  
54  
Rongotai Investments Ltd v Land Valuation Tribunal, above n 12, at [20(e)] (emphasis added).  
   
introductory paragraph of the substantive decision recording that it was unlikely to be  
issued before the commencement of the 2015 hearing.  
[130] On the day the Tribunal was served, together with a memorandum of Counsel  
drawing the Tribunal’s attention to the relief sought, the Judge made the following  
directions:  
The application requires a decision of the High Court.  
No application has been made to this Tribunal, hearing to commence 25  
November 2019. Given workload if one is filed that could not be addressed  
without notice to other parties and would be dealt with on 25 November if  
necessary. The two previous High Court decisions are relevant.  
At this time no injunction has been applied for and given to previous High  
Court decisions the tribunal will continue until orders issued.  
The 2012 decision was approved and issued today at around 12 pm.  
[131] It could be argued this was a coincidence, as Cooke J observed.55 But there is  
also a reasonable inference, given the divergence between the course of action taken  
and the timeline predicted in the first paragraph of the Tribunal’s decision, that there  
had been a change of mind by the Tribunal. It appears to me that the 2012 decision  
was released in haste, well before the previously anticipated date, to enable the High  
Court to be informed of the Tribunal’s ultimate determination of the Rongotai rating  
objections for 2012.  
Did the Tribunal act with apparent bias or predetermination?  
[132] Having canvassed the factual allegations of the Tribunal’s conduct during and  
post the hearing, I now turn to whether the test for pre-determination and apparent bias  
has been made out.  
Predetermination  
[133] I deal with predetermination briefly. As noted, predetermination involves a  
“closed mind” on the part of the decision who is not willing to change their mind or is  
open to persuasion.56 I am not satisfied here that the Tribunal made its decision with  
55  
At [20(e)].  
At [33].  
56  
       
a “closed mind.” Nor do I consider it had reached a decision in advance of the hearing  
and therefore predetermined matters. The Tribunal engaged with the evidence before  
it and did not “simply [go] through the motions of making a decision. 57 What is at  
issue is the way in which the Tribunal conducted itself during the hearing of the  
evidence and whether it gave the appearance it had acted impartially.  
[134] I consider then the test for apparent bias.  
Apparent bias  
[135] As noted earlier, the test for apparent bias has been expressed by the Supreme  
Court in the following way:58  
[Whether] a fair-minded lay observer might reasonably apprehend that the  
judge might not bring an impartial mind to the resolution of the question the  
judge is required to decide.  
[136] The two-step test involves first, the identification of what it is said might lead  
a judge to decide a case other than on its legal and factual merits; and secondly, there  
needs to be an articulation of the logical connection between the matters raised and  
the feared deviation from the course of deciding the case on its merits.  
[137] Here, the conduct of the Tribunal has been identified in the factual allegations  
during and post the 2012 rating assessment hearing, as I have canvassed above. The  
second step is to consider whether that conduct has led to the determination of the  
issues before the Tribunal on matters other than their merits. In other words, has the  
Tribunal given the appearance that it has acted impartially in its rating assessment  
inquiry?  
[138] Recent English authority has reinforced that the fairness and impartiality of the  
Court throughout trials is the “fundamental tenet of the administration of law.”59 There  
is nothing wrong in a Judge intervening in the course of witness evidence “to ask  
questions which clarify ambiguities in answers previously given or which identify the  
57  
FSCL v Chief Ombudsman [2021] NZHC 307 at [73]–[74].  
Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 26, at [3].  
Serafin v Malkiewicz [2020] UKSC 23, [2020] 1 WLR 2455 at [108].  
58  
59  
     
nature of the defence, if this is unclear.” But it is wrong for a Judge “to descend into  
the arena and give the impression of acting as advocate.”60  
[139] There are three relevant observations, which the English Court of Appeal made  
in respect of the core principle that the Judge must remain neutral. The first is whether  
a trial has been fair is not to be judged merely by the correctness of the result. The  
second is that this principle applies with equal rigour to criminal as well as civil  
litigation, and third, whether or not litigants are legally represented. In Michel v R,  
Lord Brown JSC said:61  
There is, however, a wider principle in play in these cases merely than the  
safety, in terms of the correctness, of the conviction. Put shortly, there comes  
a point when, however obviously guilty an accused person may appear to be,  
the appeal Court reviewing his conviction cannot escape the conclusion that  
he has simply not been fairly tried. … He is denied … the basic right  
underlying the adversarial system of trial, whether by jury or by jurats: that  
of having an impartial Judge to see fair play in the conduct of the case against  
him. …. The core principle, that under the adversarial system the Judge  
remains aloof from the fray and neutral during the elicitation of the evidence,  
applies no less to civil litigation than to criminal trials.  
[140] There is no “one size fits all” test of bias.62 For example, in Khadem v Barbour,  
the Federal Court of Australia observed that a statement made by a Judge to a witness  
during the hearing saying “I do not believe you are giving honest evidence” has been  
held to show bias.63 In another case, the statement “your client has more problems in  
this case than a man with a wooden leg in a bush fire” was held not to show bias.64  
What is required is an assessment of the context as a whole.  
60  
At [109]–[110].  
61  
Michel v R [2009] UKPC 41, [2010] 1 WLR 879 at [27]–[31] (emphasis added).  
Graham Taylor (ed) Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,  
62  
2018) at [13.66].  
Khadem v Barbour (1995) 38 ALD 299 (FCA).  
Re Australian Industrial Relations Commission, ex parte Heap [2003] FCAFC 36.  
63  
64  
 
[141] Excessive questioning by a Judge has more than once given rise to a perception  
of bias.65 One commentator observes:66  
New Zealand judges commonly take an active part in a trial, usually by asking  
questions of witnesses. Such questioning, even if vigorous and substantial,  
will not normally give rise to apparent bias. In contrast, when the authority’s  
actions, seen in the context of a series of disciplinary actions, appeared to be  
ad hominem not ad rem, bias was found.  
[142] In Riverside Casino Ltd v Moxon, allegations of apparent bias were not upheld  
in relation to an interim and final decision of the Casino Control Authority which  
granted a casino premises licence.67 The Court of Appeal found that confronting  
witnesses with a contrary view or inviting them to see another point of view does not  
necessarily reflect a philosophy or ideological commitment.68 It was emphasised that  
what may be painted to be a persistent and coherent pattern of interventions by the  
Casino Authority may be perceived differently when properly considering the length  
of the hearing.69  
[143] The Court concluded that:70  
From our review of the transcript of the public sittings, with the benefit of the  
full argument from counsel, we do not find any consistent pattern of  
intervention pointing to a closed mind. Rather we have gained the impression  
of an experienced member of the Authority bringing to the public sittings  
considerable experience in the field and a familiarity with the written material  
already considered. Throughout, his interventions showed that he closely  
followed the proceedings and challenged matters he did not immediately  
accept. He clarified evidence and enquired when he sought elaboration or  
further information… He participated actively throughout and, when  
corrected, he readily acknowledged error. His unnecessary robustness at times  
to us reflected more his personality and background than bias.  
65  
(a) R v Loumoli [1995] 2 NZLR 656 (CA): The Judge embarked on one and a half pages of  
questioning of a witness in the nature of cross examination, such that the interventions went  
beyond the lively and active participation in the trial process and tended to impinge on the fair  
balance of the trial.  
(b) R v Fotu [1995] 3 NZLR 129 (CA): numerous interventions showing that the Judge did not  
believe certain evidence, an intimation to the prosecutor to cease re-examination as it was  
strengthening the defence, and suggestions that a witness was suddenly recalling evidence,  
together with a biased summing-up, constituted a semi-prosecutorial approach which was  
impermissible.  
Taylor, above n 62, at [13.66].  
Riverside Casino Ltd v Moxon [2001] 2 NZLR 78 (CA).  
At [63].  
At [72].  
66  
67  
68  
69  
70  
At [70].  
   
The expression of views in the course of a hearing is not to be confused with  
bias, and allegations of bias do not open the way for some wider review of the  
merits of the decision.  
[144] The Court of Appeal concluded that the Member’s “unnecessary robustness at  
times… reflected more his personality and background than bias.”71  
[145] In Vakauta v Kelly allegations of bias arose from a Judge’s conduct in a Judge-  
alone personal injury trial.72 The Judge found in favour of the plaintiff. During the  
trial, the Judge made statements critical of evidence given by the defendant’s medical  
witnesses in previous cases. The Judge called the three witnesses the “unholy trinity”,  
stating that the doctors “think you can do a full week’s work without any arms or legs”  
and suggested a lack of independence from all, accusing them of holding views  
“almost inevitably slanted in favour of the Government Insurance Office by whom  
they have been retained, consciously or unconsciously.”73  
[146] In his reserved judgment in favour of the plaintiff, the Judge also described the  
evidence of one of the doctors was “as negative as it always seems to be – and based  
as usual upon his non-acceptance of the genuineness of any plaintiff’s complaints of  
pains.”74  
[147] The majority found that a reasonable lay person would think the trial judge  
appeared to be biased against those witnesses. They placed emphasis on the  
emphasised text above as:75  
… indicating that his Honour was concerned to vindicate his preconceived and  
very strong adverse views about the reliability of [the defence witness] and  
had allowed those views to prejudice his whole approach to the case to the  
detriment of the defendant.  
They further noted:76  
An experienced lawyer would appreciate the ability of a trial judge to ensure  
that preconceived views do not cause the actual decision to be tainted by  
prejudgment or bias. The likelihood that the lay observer would not lies at the  
71  
At [70].  
72  
Vakuata v Kelly [1989] HCA 44, (1989) 167 CLR 568.  
At 571.  
Emphasis added.  
At 573.  
73  
74  
75  
76  
At 573.  
heart of the requirement of the appearance as well as the reality of impartial  
justice.  
[148] A more recent Australian example is Gambaro v Mobycom Mobile Pty Ltd.77  
The appellant was a self-represented litigant, who had issued proceedings against the  
respondents for contravening the Fair Work Act in terminating his employment. The  
appellant had applied to the Federal Circuit Court of Australia for leave to file an  
amended statement of claim, further discovery and other orders. The Judge declined  
his request. This was appealed. The appellant’s grounds of appeal included claims  
that the Judge denied the appellant procedural fairness and natural justice, including  
that there was apparent bias by the Judge.  
[149] During the hearing, there were several hostile exchanges between the Judge  
and appellant. This is an example:  
HIS HONOUR: You can’t just change the goal posts just before the trial.  
You’re lucky that the trial is being delisted because, quite frankly, if I had  
looked at this and I had said yes you could do this you would be paying the  
costs of the other side for bringing an application so soon to the trial which  
would mean that it would have to be delisted in any event, but anyway I’m  
still trying to work out your — you know, I’m ---  
MR GAMBARO: Can we go back ---  
HIS HONOUR: You get — you will get judges very frustrated very easily, Mr  
Gambaro. Your claims are, in short compass, very narrow matters but you  
keep wanting to widen them in an incredible way. Now, what is it that you  
want to say to me?  
HIS HONOUR: How is there statute changes? Either the law is as it was ---  
MR GAMBARO: Workplace ---  
HIS HONOUR: Do not ever interrupt me. Do not ever. You’ve been told many  
times when I talk your mouth goes closed. You do not ever interrupt me or  
you will be cited for contempt. I’m not putting up with your rubbish.  
MR GAMBARO: Yes, your Honour.  
HIS HONOUR: There’s only one person in charge here and it’s me. Now, make  
your submission.  
MR GAMBARO: I thought you were going to explain something, your Honour.  
77  
Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144, (2019) 271 FCR 530.  
 
HIS HONOUR: You interrupted me. What’s so important? What is so  
important that you would risk the wrath of the court in trying to tell me that  
there is something more important. Tell me what it is.  
[150] The Federal Court of Australia referred to the decision of R v T, WA78 which  
set out the three grounds upon which excessive judicial intervention in a trial by Judge  
alone may result in a miscarriage of justice:79  
(i)  
The questioning unfairly undermines the proper presentation of a party’s case  
(the disruption ground);  
(ii) The questioning gives an appearance of bias (the bias ground); and  
(iii) The questioning is such an egregious departure from the role of a Judge  
presiding over an adversarial trial that it unduly compromises the Judge’s advantage  
in objectively evaluating the evidence from a detached distance (the conflict  
ground).  
[151] The Court observed:80  
The extent and nature of the primary judge’s interventions went well beyond  
the legitimate ends of seeking to clarify, understand and test Mr Gambaro’s  
case. The primary judge’s interventions both undermined the proper  
presentation of Mr Gambaro’s case and represented such an egregious  
departure from the role of a judge presiding over an adversarial hearing that it  
unduly compromised his Honour’s capacity to objectively evaluate the  
evidence.  
It was a feature of the hearing that Mr Gambaro’s submissions were  
interrupted so frequently that he was given no real opportunity to develop his  
case. The interruptions began almost as soon as Mr Gambaro commenced his  
submissions and continued throughout the hearing until the primary judge  
directed his removal from the courtroom.  
[152] Ultimately, the Court considered that both the first and third ground were  
established such that it was unnecessary to consider the “apprehended bias ground:”81  
…except to mention that the primary Judge’s comments made after Mr  
Gambaro had been removed from the courtroom and in the reasons for  
judgment may reflect a recognition that his Honour’s conduct gave rise to an  
apprehension of bias.  
78  
R v T, WA (2013) 118 SASR 382.  
Gambaro, above n 77, at [19].  
At [29]–[30].  
At [28] (emphasis added).  
79  
80  
81  
[153] Issues of impartiality and excessive judicial intervention were recently  
considered by both the English Court of Appeal and Supreme Court in Serafin v  
Malkiewicz, which was an appeal on unfair trial grounds.82 There, an unrepresented  
litigant’s evidence given during a defamation trial was the subject of the Judge’s  
interventions, which both Courts found were highly unusual and troubling. The  
Supreme Court held that the Judge had appeared to:83  
…descend into the arena, to cast off the mantle of impartiality, to take up the  
cudgels of cross-examination and to use language which was threatening and  
bullying; and that its impression was of a Judge who, if not partisan, had  
developed an animus towards the claimant.  
[154] The Supreme Court upheld the Court of Appeal’s “rare finding” that the  
Judge’s conduct throughout the trial was unfair towards one of the parties and its  
conclusion that:84  
[T]he Judge not only seriously transgressed the core principle that a Judge  
remains neutral during the evidence, but he also acted in a manner which was,  
at times, manifestly unfair and hostile to the claimant … the nature, tenor and  
frequency of the Judge’s interventions were such as to render this libel trial  
unfair.  
[155] The Supreme Court observed that this conduct “may come close to a  
suggestion of apparent bias on the Judgespart towards the claimant” but that the focus  
for the Court on appeal was whether the trial itself had been unfair.85 The Court noted  
that they had not been addressed on the meaning of bias, but said “it is far from clear  
that the observer would consider that the Judge had given an appearance of bias.”86  
[156] I consider the Supreme Court’s observations that the Judge “transgressed the  
core principle that a judge remains neutral” and that he “cast off the mantle of  
impartiality” squarely fit within the apparent bias test enunciated by the New Zealand  
Supreme Court in Saxmere. Questions regarding the appearance of impartiality and  
neutrality are central to this inquiry. Although Serafin arose by way of appeal, rather  
than judicial review, the findings are relevant to the inquiry in this case. In Serafin,  
82  
Serafin v Malkiewicz, above n 59.  
At [32].  
At [32], citing Serafin v Malkiewicz above n 59: [2019] EWCA Civ 852, [2019] All ER 101 at  
83  
84  
[119].  
85  
Serafin v Malkiecz, above n 59, at [37].  
At [39].  
86  
the Trial Judge dismissed the defamation claims of the self-represented litigant, who  
appealed those findings, rather than seeking a judicial review. Plainly, the unfairness  
of the trial was the key issue.  
[157] In the UK authorities cited, the unfairness test has often been focused on the  
intervention of the Judge during the trial.87 By comparison, excessive judicial  
intervention in New Zealand and Australian jurisprudence is more common in the  
judicial review context in an assessment of bias.88 Nevertheless, I consider the  
principles enunciated by Denning LJ in Jones v National Coal Board regarding  
judicial intervention, albeit in the unfairness context, are applicable:89  
[the Judge] must keep his vision unclouded …. let the advocates one after the  
other put the weights into the scales … but the Judge at the end decides which  
way the balance tilts, be it ever so slightly. The Judges part in all this … is to  
hearken to the evidence, only himself asking questions of witnesses when it is  
necessary to clear up any point that has been overlooked or left obscure to see  
that the advocates behave themselves seemly and keep to the rules laid down  
by law to exclude irrelevancies and discourage repetition; to make sure by  
wise intervention that he follows the points that the advocates are making and  
can assess their worth; and at the end make up his mind where the truth lies.  
If he goes beyond this, he drops the mantle of the Judge and assumes the robe  
of an advocate; and the change does not become him well … such are our  
standards.  
[158] I now turn to apply the bias and fairness principles to these facts.  
Analysis  
[159] Having identified the aspects of the Tribunal’s conduct that are said might lead  
the Tribunal to decide a case other than on its legal and factual merits, I now assess  
whether that conduct gives rise to the perception that the Tribunal did not act  
impartially in its 2012 rating assessment inquiry.  
[160] As noted, Counsel reminded the Court that the Land Valuation Tribunal is  
deemed to be a Commission of Inquiry90 and inherent in its power to determine its  
own process, the Tribunal may adopt an adversarial, inquisitorial, or hybrid  
87  
See Serafin v Malkiewicz, above n 93, at [40].  
See, for example, R v Loumoli, above n 65; R v Fotu, above n 65; Riverside Casino Ltd v Moxon,  
88  
above n 67; Vakuata v Kelly, above n 71; Gambaro v Mobycom Mobile Pty Ltd, above n 76.  
Jones v National Coal Board [1957] 2 QB 55 at 64 (emphasis added).  
Land Valuation Proceedings Act, s 19(14).  
89  
90  
   
approach.91 Mr Sullivan referred to the Court of Appeal’s decision in Re Royal  
Commission on Thomas case.92 In that case, the comments of the presiding judicial  
officer of the Commission of Inquiry were alleged to show “bias by pre-  
determination” by the use of strong assertions in his interrogation of police witnesses.  
The Court found that, while the matter was finely balanced and caused the Court  
anxiety, a fair-minded observer would not consider the Chairman’s use of strong  
expressions in his interrogation of Police witnesses showed a real likelihood of  
ultimate bias.93  
[161] Mr Sullivan referred to two further examples where a District Court Judge’s  
interruptions, including cross-examination of a plaintiff’s witnesses, were held not to  
constitute bias because the interventions did not affect the outcome of the case.94 Ms  
McKechnie also referred to a number of authorities in which a Judge questioning  
witnesses, even if vigorous and substantial, will not normally give rise to apparent  
bias.95  
[162] I accept that in the course of an inquiry, particularly in a specialist tribunal such  
as the Land Valuation Tribunal, the Chair, being a District Court Judge, and the  
members of the Tribunal are familiar with the issues. In this case, the Tribunal was in  
the process of undertaking four separate inquiries into the four years of valuation  
objections. It was open to the Tribunal therefore, to question witnesses as to the  
validity of the sale price for the Pengelly transaction.  
[163] Here, however, the Chair’s interventions were substantial, some of which were  
in the nature of cross-examination. The examples I have canvassed cover a range of  
the Judge’s interventions in opposing Counsel’s cross-examination of both Mr Aharoni  
and the Rongotai witnesses. The two most unconventional examples are during the  
cross-examination of Mr Aharoni, the Judge asked opposing counsel “do you think I  
have got to the P-word warning or not?” and the second is his intervention in the cross-  
91  
Te Aka Matua o te Ture | Law Commission Tribunals in New Zealand (NZLC IP6, 2008) at [2.51].  
Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA).  
At 284.  
92  
93  
94  
Riverside Casino Ltd v Moxon, above n 67; and Marcol Manufacturers Ltd v Commerce  
Commission [1991] 2 NZLR 502 (HC).  
Henderson v R [2016] NZCA 431 at [16]; and EH Cochrane Ltd v Ministry of Transport [1987] 1  
95  
NZLR 146 (CA).  
examination of Ms Watson, the registered valuer employed by QV. The Judge took  
over the cross-examination for a page and a half of questioning, stating he could only  
take it so far but left it in Counsel’s “tender care” again. The interaction between the  
Judge and opposing Counsel involved the Judge asking Counsel if he should make the  
third perjury warning, encouraging derogatory questioning by Counsel of witnesses,  
and taking a joint approach with Counsel to editing an expert witness’s brief.  
[164] As the commentaries reinforce, while excessive judicial intervention in the  
examination of witnesses does not always amount to apparent bias, questions which  
suggest incredulity at what a witness says are viewed in a different category. A  
distinction is drawn between a Judge’s intervention to clarify a genuine ambiguity,  
particularly if a jury might be confused by the ambiguity, and a Judge expressing or  
suggesting incredulity:96  
… questions which suggest incredulity as to what is being said by a witness is  
different. Here, the Judge must leave it to one of the parties to undermine the  
evidence, resisting the temptation to ‘step into the arenato do the job himself,  
as he is likely to have done in the past as a barrister.  
[165] There is a marked difference therefore, between a Judge familiar with the  
context of the valuation hearings, clarifying points of evidence with a witness,  
compared to his questioning witnesses in the nature of cross-examination, challenging  
their credibility and expressing disbelief. The Tribunal’s comments such as “good  
luck with that one Mr Pengelly,” and the comments made throughout opposing  
Counsel’s cross-examination of Mr Aharoni, together with statements that he is going  
to get a perjury warning without specifying why, gives the impression that the Judge  
thinks Mr Aharoni is not telling the truth and is viewing him in a hostile and adverse  
manner.  
[166] Whatever view one took of the conditional offer made by Mr Aharoni, this was  
a commercial property transaction. The manoeuvrings by a commercial property  
dealer may well have been done in an attempt to drive a price up beyond the current  
market value. That, however, does not justify a Tribunal expressing incredulity as to  
what Mr Aharoni and Ms Watson said in their evidence and intervening to cross-  
96  
Shetreet and Turenne, above n 46 at [5.22].  
examine witnesses accordingly. Adopting Lord Denning’s description, I consider the  
Judge here undertook extensive questioning of witnesses and in so doing, “stepped  
into the arena” and engaged with opposing Counsel in cross-examining the witnesses  
himself.  
[167] I turn then to consider the Judge’s perjury warnings. Although the lessees  
submit that it is an overstatement to say that the Judge gave perjury warnings, I  
consider that the Judge was clearly referring to perjury warnings, when he gave them  
to Mr Aharoni. However, the Judge does not specify why he has given a warning and  
as noted, he did not even wish to refer to the ‘P-word.’  
[168] I find the warnings are troubling in two respects. First, there was no basis to  
give a perjury warning. Where a witness runs a risk of committing perjury, if he or  
she gives dishonest evidence, a Judge may give a perjury warning, to ensure that the  
witness understands the implication of potential criminal charges. When a witness is  
advised that there is something incorrect in the witness’s brief, that is a proposition  
that is normally put to the witness in cross-examination and the witness can either  
accept it or not. The question for the Tribunal was whether it considered the higher  
conditional offer from Rongotai should affect the validity of the ultimate sale price of  
the Pengelly transaction. Taken at its highest, the Tribunal potentially had a credibility  
issue to resolve as to whether the offer should be considered as a valid indicator of  
value.  
[169] Second, once a Judge warns a witness that his answers may give rise to a  
potential criminal proceeding such as fraud or perjury, the basis for such a warning  
has to be made clear. Mr Aharoni had been excluded from the evidence of the vendor,  
Ms Quinlan, but maintained his position that he had made a genuine offer to purchase.  
Despite the fact that Ms Quinlan agreed that she had received an offer from him, the  
Tribunal took a different view of Mr Aharoni’s evidence and issued the three warnings  
against Mr Aharoni.  
[170] In Re Erebus Royal Commission, a line was drawn between a perjury and a  
credibility finding. Lord Diplock for the Privy Council observed that where the crime  
concerned is one of perjury, there may well be a grey area between what is permissible  
comment upon evidence that is rejected by the decision maker and a finding of  
criminal conduct by a witness, which does not fall within the Commissioner’s terms  
of reference.97  
[171] Two important considerations flow from the Erebus decision. The first is that  
if an adverse finding, particularly one bordering on criminal conduct is to be made,  
there must be an opportunity for the persons involved to comment on such allegations.  
In this case, the Judge, by referring to the “P-warning” was plainly referring to a  
‘perjury warning’ and potential dishonesty. The Tribunal’s view that Mr Aharoni’s  
conduct was dubious or untoward was reflected in comments made in the 2012 interim  
decision. Mr Aharoni, deserved an opportunity to comment on any adverse findings  
that were to be made about him.  
[172] It was open to the Tribunal, as it did, to reject Mr Aharoni’s evidence. In doing  
so, there was no basis upon which the Tribunal needed to issue perjury warnings.98 If  
a witness, as a result of a challenge under cross-examination, has to accept their  
evidence is wrong in some detail and must therefore be corrected, this does not require  
a warning against perjury. Any correction to a witness’s evidence gives rise to a  
potential credibility finding, not a warning about perjury.  
[173] Making adverse judicial comments is another feature of the Tribunal’s conduct  
in the 2012 hearing. In Muir v Commissioner of Inland Revenue,99 an application was  
made for the trial judge to recuse himself in determination of a non-party costs  
application, following a hearing within which he was highly critical of the non-party  
witness to the proceeding. The Court of Appeal rejected the contention that any prior  
adverse rulings would be indicative of bias, warranting disqualification.100 However,  
relevantly the Court addressed adverse judicial comments as follows:  
[102] Turning now to adverse comments, Judges are duty bound to refrain  
from making unnecessary comments. The various codes of judicial conduct –  
including the Australasian ones – call on Judges to be courteous to the litigant,  
observe proper decorum, and to be particularly cautious and circumspect in  
97  
Re Erebus Royal Commission [1983] NZLR 662 (PC) at 686.  
Although the lessees submit that it is an overstatement to say that the Judge gave perjury warnings,  
98  
I consider that the Judge was clearly referring to perjury warnings, when he gave them to Mr  
Aharoni.  
Muir v Commissioner of Inland Revenue, above n 33.  
99  
100  
At [98]–[101].  
their language. And Judges should not issue oral condemnations that are  
unrelated to the furtherance of the cause to be decided or are simply gratuitous.  
[103] Comments as such will ordinarily not suffice to warrant recusal. What  
is important is that commentary should not however demonstrate that the  
Judge has formed a fixed opinion as to the ultimate merits of the matter  
pending before him or her. It has to be shown, in short, that the Judge does  
not have an open mind.  
[174] The Judge here made continued remarks both in the evidence of Mr Aharoni  
and in the cross-examination of witnesses either called by Rongotai or a witness, such  
as Ms Watson, who was favourable to Rongotai’s position, suggesting there was an  
orchestration of evidence by Mr Aharoni and they were simply repeating what he had  
told them. In issuing the perjury warnings, the Judge persisted in telling Mr Aharoni  
to tell the truth, which indicated he did not accept his evidence. That conclusion is  
one the Judge should reach after all the evidence is heard and an analysis undertaken  
in a reasoned decision. I accept Rongotai’s submission that adverse comments by a  
judicial officer to a witness have the effect of impeding a witness’s evidence, by  
implying that their evidence is worthless or is concocted.  
[175] The basis for the Tribunal’s exclusion orders made in relation to Mr Aharoni  
was also concerning. The presumption that parties to proceedings should be present  
throughout a case is derived from s 27 of the New Zealand Bill of Rights Act 1990.  
The presumption is subject to exclusion orders, which may be made in cases involving  
“serious allegations of deceit, misrepresentation and concealment”.101 On factual  
issues not involving fraud or dishonesty or criminal wrong-doing, exclusion of  
witnesses is not normal. Here, the exclusion order was made part way through the  
hearing and without advance notice to Counsel.  
[176] The Tribunal also made orders excluding Mr Butchers. It is unusual, as Cooke  
J has noted, that an exclusion order would apply to expert witnesses, unless there were  
compelling reasons.102 Having made the witness exclusion orders of his own motion,  
it is highly unusual for the Judge to then ask opposing Counsel, who had not applied  
for such an order, if he wanted Mr Butchers “excluded again.”  
101  
Maruha Corp v Amaltal Corp (2004) 17 PRNZ 67 (HC) at [12]–[14]. See also Matthew Downs  
(ed) Cross on Evidence (loose-leaf ed, Lexis Nexis) at [EVA3.41(e)].  
Rongotai Investments Ltd v Land Valuation Tribunal, above n 12, at [20(b)], citing Maruha Corp  
102  
v Amaltal Corp (No 5) (2004) 17 PRNZ 83 (HC).  
[177] However, it is the Tribunal’s pursuit of an irrelevant inquiry that is the most  
concerning feature of the 2012 hearing. The Tribunal did not need to inquire into why  
Mr Aharoni took the steps he did in making his conditional offer. The Tribunal itself  
accepted that it was not necessary for it to reach any conclusion as to “why Mr Aharoni  
acted in the way he did”.103 It was irrelevant to the Tribunal’s inquiry and  
determination. The Tribunal had to adjudicate on objections over the 2012 rating  
valuations. The relevant issue was a factual one, namely, whether the sale of the  
Pengelly properties was a market and relevant transaction. If it was a relevant market  
sale for inclusion in the sales comparison valuation approach, then all that remained  
for the Tribunal to determine was whether it was a low or distressed sale. In that event,  
adjustments would then be made to its comparable value.  
[178] The Tribunal’s questions and comments as to the consistency of Mr Horsley’s  
evidence and the independence of both Messrs Horsley and Butchers are also, to my  
mind, demonstrative of the Tribunal’s adverse views towards the Rongotai position.  
There was no reason why Mr Horsley would not honestly accept that he may have  
been wrong in his brief of evidence, when he was challenged. This does not warrant  
a warning about the truthfulness of his evidence.  
[179] I am driven to the conclusion that the fair-minded and informed lay observer  
might consider that as the Judge did not remain neutral during the evidence, he might  
not bring an impartial mind to the Tribunal’s findings. He made excessive  
interventions in the oral evidence of Mr Aharoni and his witness Mr Horsley; he made  
adverse remarks about Mr Aharoni during the hearing, excluded him from the hearing  
when relevant evidence was being adduced, leaving his Counsel with no client -party  
in his absence; and he participated in the opposing parties’ cross-examination of Mr  
Aharoni, his witnesses and the independent witness Ms Watson, who was favourable  
to Rongotai’s position.  
[180] In relation to the submissions on the post-hearing conduct of the Tribunal, I  
accept it appears that the Tribunal was intent on making its views of Rongotai’s case  
available to the High Court in delivering the substantive decision much earlier than its  
103  
The 2012 interim decision, above n 1, at [42].  
stated expectation that the Tribunal would release it at a later time. I consider this  
should be viewed as part of the Tribunal’s attitude towards the Rongotai position and  
the parties, rather than being viewed separately.  
[181] Applying the test of the fair-minded and reasonably informed lay observer,  
who is neither unduly sensitive nor suspicious nor complacent about what may  
influence a Judge’s decision, I consider that such an observer might reasonably  
apprehend that there was a real and not remote possibility that the judicial officer did  
not bring an impartial mind to the hearing. The words used by the UK Supreme Court  
in Serafin v Malkiewicz are applicable here. The Judge appeared to “descend into the  
arena, cast off the mantel of impartiality” and took up the “cudgels of cross-  
examination,” engaging with opposing Counsel in doing so. The unfortunate  
impression was of a Judge that had developed a hostile and adverse attitude towards  
Mr Aharoni and his witnesses, such that a lay observer might reasonably apprehend  
that the Judge might not bring an impartial mind to the determination of the 2012  
issues at hand.  
[182] Even if, as the Tribunal accepted, the conditional offer made by Mr Aharoni  
was “a construct… to justify a higher per square metre value within Rongotai”, it did  
not provide a basis for the Tribunal to imply that there was something suspicious or  
dishonest about Mr Aharoni’s actions. Unfortunately, that is the flavour of the  
language used in the interim decision.  
[183] In assessing all of the above aspects of the Tribunal’s conduct towards the  
Rongotai parties and witnesses in its conduct of the 2012 rating objection hearing, I  
find that the Tribunal’s conduct gave rise to an appearance of bias in the eyes of the  
fair-minded and reasonably informed lay observer. Unlike the trial in Serafin, where  
self-represented litigant’s credibility and reputation were at issue, this was a rating  
valuation reassessment before a specialist Tribunal, which did not require such an  
inquiry into the motives of Mr Aharoni.  
[184] The test of apparent bias has, in my view, been met. The Tribunal’s conduct  
resulted in an unfair hearing for the Rongotai parties and culminated in an interim  
decision, which made damaging and unnecessary adverse findings against Mr Aharoni  
and the independent QV witness, Ms Watson with reputational consequences.104 In  
relation to the substantive 2012 hearing, the aspects of the Tribunal’s error have been  
determined in the Valuation Court’s 2012 appeal decision. Relief in this proceeding,  
however, in respect of the interim decision is dealt with more fully below.  
[185] Accordingly, I make the declarations that the conduct of the Tribunal of the  
2012 rating objection hearing and its 2012 interim decision disclosed apparent bias.  
As a result, the 2012 hearing was unfair.  
What is the relief?  
[186] Although relief in judicial review is discretionary, “where a claimant  
demonstrates that a public decision-maker has erred in the exercise of its power, the  
claimant is entitled to relief.”105 The Court may decline relief, even where a decision-  
maker has acted improperly but there must be “extremely strong reasons” for it to do  
so.106 The Courts will however generally consider it appropriate to grant some form  
of relief where reviewable error is made out107 and “whatever remedy is most  
appropriate will be employed.”108  
[187] Rongotai initially sought that the 2012 Tribunal interim and final decisions  
were quashed and that the 2012 objections be re-heard by a differently constituted  
Land Valuation Tribunal. I have found apparent bias. The feared logical conclusion  
was that the Tribunal’s 2012 substantive decision was affected by that bias. However,  
at the outset of this hearing, Mr Allan no longer sought the orders for re-hearing but  
sought declarations that the 2012 hearing was unfair in that Rongotai’s case was not  
heard and the 2012 decision and the in-hearing and post-hearing conduct of the  
Tribunal disclosed apparent bias and/or predetermination.  
[188] In its written submissions, Rongotai relied on the High Court of Australia’s  
decision in Oakey Coal Action Alliance v New Acland Coal Pty Ltd109 in which the  
104  
Peters v Davison [1999] 2 NZLR 164 at 189.  
Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR (CA) at [61].  
Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL).  
Ririnui v Land Corp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].  
Hunt v A [2007] NZCA 332, [2008] 1 NZLR 368 at [92].  
Oakey Coal Action Alliance v New Acland Coal Pty Ltd [2021] HCA 2, (2021) 386 ALR 212.  
105  
106  
107  
108  
109  
   
Court held that where an inferior Court’s decision is affected by apparent bias, the  
default position is that the decision is set aside and a new hearing should be ordered,  
and departure from this approach should be in “highly exceptional” circumstances  
only.110  
[189] There are exceptional circumstances here, as all parties appear to acknowledge,  
justifying a departure from the default approach of directing a re-hearing. There would  
be no useful purpose in remitting the 2012 objections back to either the originally  
constituted Tribunal or a differently constituted Tribunal, given that four consecutive  
hearings for the 2007, 2012, 2015 and 2018 objections were heard by the same  
Tribunal in a strictly timetabled way, because of the inordinate delay in having the  
objections heard. Further, such relief is inappropriate, particularly as Rongotai has  
exercised its appeal right by way of re-hearing. As noted, the 2012 appeal decision is  
also under consideration by the Valuation Court and will be issued contemporaneously  
with this judgment.  
[190] In Russell v Taxation Review Authority,111 the Court of Appeal addressed an  
allegation of apparent bias/predetermination by the Taxation Review Authority, where  
the same Judge had previously made comments in a template judgment that were  
forcefully adverse to the appellant, holding that the arrangement under review was  
patently an arrangement for tax avoidance. The Court held that the Judge should have  
recused himself from deciding afresh whether the appellant’s scheme was tax  
avoidance, given his previous findings and comments.112 However, the Court found  
that the appeal to the High Court by way of a re-hearing cured the earlier denial of  
natural justice and would be unaffected by any suggestion of apparent bias or  
predetermination.113  
[191] Counsel for the lessees submit that any unfairness can be addressed by way of  
Rongotai’s rehearing on appeal and that any gratuitous or seriously adverse credibility  
findings made against Mr Aharoni and Ms Watson can be addressed in the underlying  
appeal. Both Ms McKechnie and Mr Sullivan submit that given the intensely factual  
110  
At [101].  
111  
Russell v Taxation Review Authority [2011] NZCA 158, [2011] NZAR 310.  
At [34].  
At [3] and [45].  
112  
113  
 
questions in dispute as part of the four appeal proceedings, including the 2012 appeal,  
is curative of any procedural irregularities in the Tribunal and there is no continuing  
prejudice to Rongotai.  
[192] I consider then, what relief should follow in respect of each of the Tribunal’s  
interim and substantive 2012 decisions.  
The interim decision  
[193] The interim decision of the Tribunal reflects the Tribunal’s adverse and hostile  
views of Mr Aharoni in particular and collaterally, Ms Watson. The Tribunal recorded  
that Mr Aharoni “had no intention of acquiring [the Pengelly properties]” at his offered  
price and that he had “seized upon these events to argue without any substance” that  
the Pengelly transaction “should be ignored”, finding it “more likely than not” that his  
offer to purchase was contrived to support an argument in favour of a “different per  
metre rate”.114  
[194] In light of the Tribunal’s orders excluding Mr Aharoni and the perjury  
warnings, the Tribunal should have given an opportunity to Mr Aharoni to comment  
on the proposed adverse findings. I accept Rongotai’s submission that he was not  
given a fair opportunity to respond to these conclusions, in light of the reputational  
damage that could flow. This is particularly so, when the Tribunal itself acknowledges  
that, “in the end it is not necessary for us to reach a conclusion as to why Mr Aharoni  
acted in the way he did.”115 Yet, the Tribunal proceeded to make adverse and  
inappropriate findings against Mr Aharoni.  
[195] Similarly, the adverse comments in the interim decision about Ms Watson were  
gratuitous and she has not had an opportunity to comment on them.  
[196] Rongotai has brought a substantive appeal in relation to the valuation  
assessment for 2012. The outcome of the 2012 appeal deals with the errors in the  
Tribunal’s approach to the valuation issues and as part of that evaluation has  
determined that the Pengelly transaction was a relevant sale, at the relevant time, and  
114  
The 2012 interim decision, above n 1, at [41]–[42].  
At [42].  
115  
   
in the Rongotai area, albeit that it was a low sale. I do not set aside, therefore, the  
Tribunal’s finding in its interim decision that the Pengelly transaction is an arm’s  
length and valid transaction, nor the Tribunal’s finding that the Pengelly transaction  
should be considered as a comparable and relevant, but low, sale.  
[197] I consider that as the interim decision manifests the manner in which the Judge  
did not remain neutral to Mr Aharoni and his position, or to Ms Watson’s evidence,  
the parts of the interim decision, where the Tribunal communicates its views of the  
witnesses, should be removed. I have determined therefore, that the 2012 interim  
decision should be set aside in part116 and an order made to redact the paragraphs of  
the decision containing the adverse comments about Mr Aharoni and Ms Watson. I  
consider this is the most appropriate relief to remedy the natural justice and fairness  
breaches.  
The substantive 2012 decision  
[198] Although I have concluded that the 2012 hearing was conducted unfairly, the  
substantive decision is not set aside. The 2012 Tribunal decision forms one of four  
similar decisions on the substantive issues of rating valuation reassessment. The  
reasoning of the Tribunal in reaching its 2012 reassessment valuation is analysed in  
the Valuation Court’s 2012 appeal decision. We did not uphold the Tribunal’s  
conclusions and the reasons are set out fully in that appeal decision. As Counsel  
accepts, it serves no purpose to set aside the 2012 substantial decision. Consistent  
with the Court of Appeal’s approach in Russell,117 the appeal by way of rehearing cures  
the denial of natural justice or fairness to Rongotai. Further, there is no repetition of  
the Tribunal’s adverse comments in the substantive 2012 decision and no redaction is  
required.  
Relief  
[199] The application for review is granted.  
116  
Judicial Review Procedure Act 2016, s 16(2).  
Russell v Taxation Review Authority, above n 111.  
117  
       
[200] A declaration is made that the Land Valuation Tribunal’s conduct of the 2012  
rating objection hearing and its interim 2012 decision disclosed apparent bias. As a  
result, the 2012 hearing was unfair.  
[201] The Tribunal’s interim 2012 decision is set aside in part.  
[202] I order that all paragraphs of the interim decision be redacted, save for  
paragraphs A, B, C, 4, 5, 6, 15, 16, 17, 18, 19, 20, 21 (minus the first sentence), the  
amended last sentence of [45], [46] and [48], as set out and attached to this judgment  
as Annexure A.  
[203] Leave is granted to Counsel to raise any issues arising from the redactions of  
the Tribunal’s interim 2012 decision.  
Costs  
[204] If any of the parties seek costs, Counsel are to file memoranda of no more than  
five pages within 20 days of the date of this decision. Further directions will then  
follow.  
Cull J  
Solicitors:  
Morrison Kent, Wellington, for Rongotai Investments Ltd and Rongotai Estates Ltd  
Quotable Value New Zealand Ltd, Petone for Wellington City Council  
Simpson Grierson, Wellington, for Bunnings Ltd  
Solicitors for Other Lessees:  
Lane Neave, Christchurch, for Wellington International Airport Ltd and 2468 Ltd  
PCW Law, Auckland, for NZ Cash Flow Control Ltd  
Hughes Robertson, Wellington for R Blaylock & Y Kerekes and Wild Bay Property Ltd  
   
Annexure A  
REVISED 2012 ORAL INTERIM DECISION OF THE LAND VALUATION  
TRIBUNAL  
A:  
The Pengelly transaction is an arms-length and valid transaction.  
B:  
Given it is a sale in the same area of Rongotai, the transaction is a compelling  
relevant sale when considering rating values in the Rongotai area.  
C:  
The Tribunal will need to consider the 2012 rating valuations in light of this  
sale.  
The Pengelly transaction  
[4] At the heart of much of the factual dispute between the parties in relation to the  
2012 valuation is a sale and purchase transaction which occurred by agreement dated  
17 October 2012 in relation to two properties within the Rongotai precinct situated  
near the Wellington Airport. The Rongotai area is more particularly described in our  
previous decision.  
[5] The properties subject to sale were 94 Tirangi Road and 8 Kingsford Smith  
Street and were sold by Rongotai Properties Limited (for 94 Tirangi Road) and  
Tullamarine Properties Limited (for 8 Kingsford Smith Street) to Pengelly Properties  
Limited by agreement for a total price of $2,375,000. That sum was broken down by  
terms of the two agreements entered into. We attach as A and B the key pages from  
the agreements for sale. The terms are standard and the offer is unconditional.  
[6] It is common ground that the process leading to that was one undertaken by  
Baileys for the vendors by way of a tender process. Mr Grant Young, a senior real  
estate agent, with some in excess of 20 years’ experience, acted for the vendors in  
respect of the preparation and tendering of the property. He gave evidence to the  
Tribunal and we acknowledge him to be a senior real estate agent well versed in the  
matters related to the tendering of business properties.  
The Pengelly purchase  
[15] We now deal with the purchase of the property by the Pengelly interests. They  
were the underbidder, in the tender process. We are satisfied from both the evidence  
of both Ms Quinlan and Mr Young, that the owners instructed Mr Young to go back to  
the underbidder to see if they would increase their offer.  
[16] It is clear that the vendors were interested in selling both properties and they  
therefore negotiated with the Pengellys' to buy both at the same time. We accept that  
the individual property offers from Pengelly were in the alternative but that the sum  
total of the two bids was some $2.6 million. However, it is clear and accepted by all  
witnesses that these offers were for one or other but not both of the properties.  
[17] In fact, they entered a separate bid for both properties A and B together at $2.2  
million. Subsequent negotiation led to the agreements, which we annex marked A and  
B, for $2,375,000 on normal terms with settlement consequently occurring. That was  
for the freehold interest in the property, not being subject to any leases.  
[18] Nevertheless, Ms Quinlan told the Court and Mr Pengelly confirmed, that there  
were buildings in poor condition on both sites. Ms Quinlan tells us that at least one of  
those buildings was yellow stickered as a result of earthquake risk. Mr Pengelly  
confirmed in this evidence to the Tribunal that he undertook improvement works to at  
least one of the sites for the purposes of accommodating his business.  
[19] As it transpires, the Pengelly transport interests had been located in the Rongotai  
area for some time and at the time of the agreement were occupying leasehold land  
from Wellington International Airport Limited nearby. Consequently, we accept that  
they had a particular interest in acquiring property in the area as did Mr Aharoni.  
[20] The evidence from Mr Pengelly was compelling. He manages a large and  
successful business and we would describe him as a realistic and hard-headed  
businessman. He purchased the property, he says to us, at a fair price and higher than  
he thought it was worth. He considered both properties together were worth $2.2  
million but the offers A and B were limited time offers for both properties because he  
wanted to stay in the same area close to his existing building. We accept that evidence  
unequivocally.  
[21] No other evidence produced to us derogated from that evidence at all. We  
accept that Pengelly’s interests were at all times an interested party and a willing  
purchaser, they were under no compulsion. In answer to questions Mr Pengelly  
confirmed that they did not exercise any stress or duress upon the vendor and we  
accept absolutely that this was an arm’s length transaction between the two parties.  
…..  
Effects of Pengelly transaction on value  
[45] [W]e … conclude that the Pengelly transaction was entirely a market and  
relevant transaction.  
[46] It is not necessary at this stage for us to reach a conclusion as to the market  
value as a result of this conclusion. All parties have accepted that there are a basket  
of sales that must be had regard to and no party is arguing before us that only the  
Pengelly transaction should be considered.  
[48] This decision is therefore interim only on the question of the Pengelly  
transaction and we have yet to consider the overall market value per square metre for  
the land in Rongotai and the appropriate values that would apply.  
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