Bhana v Chief Executive of the Ministry of Business, Innovation and Employment

[2024] NZHC 1101

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV 2022-463-101

[2024] NZHC 1101

BETWEEN

JASU MATI BHANA and STEPHEN CHIMAN BHANA
Appellants

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT

Respondent

Hearing:	On the papers
Appearances:	Mr S and Mrs J Bhana, Appellants in Person M L Brown for the Respondent
Judgment:	7 May 2024

JUDGMENT OF HARVEY J

This judgment is delivered by me on 7 May 2024 at 11am pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Ministry of Business, Innovation Employment Legal Services, Auckland

And to:
Jasu and Stephen Bhana, Appellants

BHANA v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2024] NZHC 1101 [7 May 2024]

Introduction

[1]                On 1 December 2023 I dismissed the appellants’ appeal, the detail of which need not encumber this brief decision.1 Following that, on 14 February 2024, costs of

$11,233 were awarded to the respondent.2

[2]                The appellants seek recall of the costs decision. By memorandum dated 15 February 2024 Mrs Bhana confirmed that her husband had been unwell with COVID- 19 and was receiving ongoing medical assistance. This had apparently prevented him from lodging an appeal of the 1 December 2023 decision and from filing submissions on costs. The appellants submitted:

Draft submissions on costs had been prepared but not finalised and await that opportunity to do so which are memorandum was to be filed but the reserve decision came earlier.

We would like the reserve judgment dated 14th February 2024 on costs to be recalled based upon the appellants costs submissions to be filed upon health recovery. There is no prejudice to the Respondents in this respect.

[3]                They also contended there is “substantial” evidence to contest the costs claim, and that there is a risk of miscarriage of justice should the decision not be recalled.

[4]                In reply, Ms Brown for the respondent submitted there is nothing in the most recent memorandum that justifies recall.

Legal principles

[5]                A judgment may be recalled at any time before it is sealed.3 The threshold for recall is high. The circumstances in which recall is available are discussed in Horowhenua County v Nash (No 2):4

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled - first, where since the hearing

1      Bhana v Chief Executive of the Ministry of Business, Innovation and Employment [2024] NZHC 169.

2      Bhana v Chief Executive of the Ministry of Business, Innovation and Employment [2023] NZHC 3466.

3      High Court Rules 2016, r 11.9.

4      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC), emphasis added.

there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[6]                The third category will rarely be engaged in relation to costs orders.5 A “very special reason” for recall may arise, inter alia, where the Court has been misled, a party has been given incorrect information which affects their conduct, or where orders are founded on incorrect evidence.6

Discussion

[7]                As foreshadowed, the grounds for recall are that the appellant did not have the opportunity to file submissions on costs, and that if they had, there would be no basis for granting costs to the respondent. However, I noted in the costs decision that the appellants had filed two memoranda on costs before judgment was issued.

[8]                The first indicated that the ongoing illness of Mr Bhana prevented him from filing submissions within the 10-day timeframe and said that costs submissions would be filed once the Court opened in January 2024. The second memorandum addressed the appellants’ intention to file an appeal of the substantive judgment and noted that the deadline for doing so was 22 January 2024. The issue of costs was not addressed.

[9]                Both memoranda indicated dates for filing that had passed by the time I issued judgment on costs.7 The Registrar also confirmed that no medical certificate has been made available to the Court. In any case, I consider that the appellants had more than reasonable opportunity to make submissions on costs between December 2023 and February 2024. The issues at hand were not overly complex, even acknowledging that the appellants are self-represented.

5      Murren v Schaeffer [2019] NZCA 34 at [19].

6      See generally, Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [11.9.01(6)].

7      I note that the second memorandum did not address a date for filing costs submissions, but it seems the appellant believed an appeal would act as a stay on costs. It is therefore relevant to the appellants’ engagement with the costs application.

[10]            Accordingly, I find that there is no “very special reason” for recall. As I noted in the costs decision, an award may be set aside upon successful appeal of the substantive judgment.8 That avenue is the correct one for the appellants to pursue should they still wish to do so, noting that such an application would require leave as it is now out of time.

Decision

[11]The application for recall is declined.

Harvey J

8      Bhana v Chief Executive of the Ministry of Business, Innovation and Employment, above n 1, at [8].