Bradbury v Judicial Conduct Commissioner - [2014] NZCA 471

IN THE COURT OF APPEAL OF NEW ZEALAND

CA357/2013
[2014] NZCA 471

BETWEEN

CLIVE RICHARD BRADBURY AND GREGORY ALAN PEEBLES
Appellants

AND

JUDICIAL CONDUCT COMMISSIONER
First Respondent

GARRY ALBERT MUIR
Second Respondent

Court:

Ellen France P, Stevens and Wild JJ

Counsel:

G J Judd QC for Appellants
D J Goddard QC and L Theron for First Respondent
L J Taylor QC for Justice Venning

Judgment:

(On the papers)

26 September 2014 at 11 am

JUDGMENT OF THE COURT

AThe application for recall is dismissed.
BThe appellants must pay each of the first respondent and counsel for Venning J indemnity costs (the actual costs incurred in relation to the recall application) and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Introduction

The appellants seek a recall of our judgment[1] dismissing their appeal against a decision of the High Court in which Goddard J dismissed the appellants’ application for judicial review of the decision of the Judicial Conduct Commissioner (the Commissioner).[2] The Commissioner had dismissed the appellants’ complaint against Venning J. That complaint related, in essence, to what the appellants saw as material non-disclosure by the Judge in the context of litigation involving them and the Commissioner of Inland Revenue.[3]
[1]Bradbury v Judicial Conduct Commissioner [2014] NZCA 441, (2014) 26 NZTC ¶21-099.
[2]Muir v Judicial Conduct Commissioner [2013] NZHC 989, (2013) 26 NZTC ¶21-019.
[3]Accent Management Ltd v Commissioner of Inland Revenue (2004) 22 NZTC 19,027 (HC).
Before the Commissioner and in the High Court, the appellants advanced their case in part on the basis that, in July 1992, the Judge made false declarations under the Land Settlement Promotion and Land Acquisition Act 1952 (the LSP Act) in relation to a forestry investment in which he was involved. In their written submissions in this Court the appellants expressly disavowed any reliance on that aspect of their claim and that aspect was not pursued in oral argument. The appellants now say that they should be entitled to change their position and reargue their case on the basis that the declarations were false because a paragraph in our judgment supports that contention. This is the basis on which the application for recall is sought.
The application for recall is opposed by the Commissioner and by the Judge. Having considered the submissions from the parties and from Mr Taylor QC for the Judge, we have concluded there is no basis to recall the judgment. Our reasons follow.

The recall application

The principles governing recall of a judgment are well settled and are set out in the following extract:[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 there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bradbury v Judicial Conduct Commissioner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZCA 471
Decision Date: 26 September 2014 at 11 am

CaseChat Overview and Summary

In Bradbury v Judicial Conduct Commissioner, the Court of Appeal of New Zealand was asked to recall a previous judgment dismissing the appellants' appeal against a decision of the High Court. The appellants sought recall on the basis that a paragraph in the Court of Appeal’s judgment supported their claim that certain declarations made by Venning J were false. The legal issues before the Court of Appeal were whether the judgment could be recalled and, if so, on what grounds.

The Court of Appeal found that the recall application was without merit. The Court noted that recall is only appropriate in three specific situations: when there has been an amendment to a relevant statute, when a relevant legislative provision or authoritative decision has not been brought to the Court's attention, or when there is some other very special reason that justice requires recall. The appellants argued that the latter category applied because a paragraph in the Court of Appeal's judgment supported their claim that Venning J made false declarations. The Court of Appeal disagreed, stating that the paragraph in question was an observation and not part of the Court’s reasoning. The Court also noted that the declarations were treated as correct by both the Commissioner and the Court of Appeal, and that the appellants had properly abandoned this argument. The Court further found that allowing the recall would perpetuate an abuse of process, as the appellants had previously conceded that the declarations were correct.

In conclusion, the Court of Appeal dismissed the application for recall and ordered the appellants to pay indemnity costs to the Commissioner and Venning J. The Court held that there was no special reason to recall the judgment and that allowing the recall would only perpetuate an abuse of process.

Orders