Anthony Pratt Kaye and Morva Kaye v Norris Ward McKinnon

IN THE SUPREME COURT OF NEW ZEALAND

SC 29/2016
[2016] NZSC 104

BETWEEN	ANTHONY PRATT KAYE AND MORVA KAYE Applicants
AND	NORRIS WARD MCKINNON Respondent

Court:	William Young, Glazebrook and OʼRegan JJ
Counsel:	Applicants in person M J Dennett and C A Robertson for Respondent
Judgment:	15 August 2016

JUDGMENT OF THE COURT

The recall application is dismissed.

____________________________________________________________________

REASONS

The applicants seek a recall of our judgment of 15 June 2016 dismissing their application for leave to appeal against a judgment of the Court of Appeal.[1]
[1]Kaye v McKinnon [2016] NZSC 66.
The application is based on arguments which are (a) largely directed to what are said to be errors made by the High Court and Court of Appeal; and (b) more generally to the effect that leave to appeal ought to have been granted. It is, in substance, an attempt to re-argue the application for leave to appeal. Nothing has been advanced which would warrant a recall of our decision not to grant leave.

Solicitors:
Kennedys, Auckland for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand, comprising William Young, Glazebrook and O’Regan Justices, heard an application from Anthony Pratt Kaye and Morva Kaye for a recall of a previous judgment dismissing their application for leave to appeal. The respondents to the recall application were Norris Ward McKinnon. The applicants were representing themselves, while the respondents were represented by M J Dennett and C A Robertson. The judgment was handed down on 15 August 2016. The applicants sought to recall the Court’s judgment of 15 June 2016, which dismissed their application for leave to appeal against a decision of the Court of Appeal. The applicants based their recall application on what they argued were errors made by both the High Court and the Court of Appeal in their previous decisions, and on the broader contention that leave to appeal should have been granted.

The court considered the nature of the recall application, which essentially sought to re-argue the merits of the earlier application for leave to appeal. The applicants contended that their arguments had not been properly considered, and that the Court’s dismissal of their application for leave to appeal contained errors. However, the Court found that there was no new evidence or argument presented that would warrant a recall of its earlier decision. The recall application was viewed as an attempt to re-litigate the issues that had already been decided by the Court.

In dismissing the recall application, the Court emphasised that recall was an exceptional remedy, only available in cases where there had been a manifest error of law or some other substantial procedural irregularity. The Court found that the applicants had not demonstrated any such error in the earlier proceedings that would justify a recall of its judgment. The Court reiterated that the recall application was not an opportunity for the applicants to re-argue the merits of their case, but rather to address specific and substantial procedural issues or errors of law in the earlier proceedings. Since no such issues had been identified, the recall application was dismissed. The Supreme Court upheld its earlier decision not to grant leave to appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established