Bradbury v Judicial Conduct Commissioner
[2014] NZCA 471
•26 September 2014 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA357/2013 [2014] NZCA 471 |
| BETWEEN | CLIVE RICHARD BRADBURY AND GREGORY ALAN PEEBLES |
| AND | JUDICIAL CONDUCT COMMISSIONER GARRY ALBERT MUIR |
| Court: | Ellen France P, Stevens and Wild JJ |
Counsel: | G J Judd QC for Appellants |
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.
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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 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.
[4]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 per Wild CJ; see the application to this Court in Rainbow Corp Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 (CA); Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [10]; and Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23(b)(i)].
Presumably, the appellants rely on the third category of case where a judgment may be recalled, that is, that for some other very special reason justice requires that the judgment be recalled.
The paragraph in our judgment relied on by the appellants in their recall application reads as follows:[5]
[68] We interpolate here that it is problematic as to how Tahakopa might have become liable for stamp duty, notwithstanding the wide definition of “instrument of conveyance” as outlined above. By name and function “Tahakopa Forest Trust Ltd” was incorporated to hold the forestry block for the forestry investors. As we detailed above, when Tahakopa was incorporated in 1992 six investors held 96 of the 100 shares, with four additional shareholders each holding one share, to make up the 10 person company required by the LSP Act. By 1999 there were four investor shareholders each holding 25 shares. On one view, the deed of trust may have been unnecessary being a statement of the obvious. However, we say no more about this because Venning J was prepared to deal with the matter on the basis some liability to the Commissioner for Inland Revenue could be established. That was the basis on which the Commissioner and Goddard J dealt with the matter.
[5]Footnotes omitted.
To put the recall application in context, at the time the Judge signed the declarations, the LSP Act required that, in order to acquire land, a company either had to make an application for consent, or be incorporated with at least 10 shareholders and file a statutory declaration stating that the purchaser had entered into the transaction solely on its own behalf as the person beneficially entitled under the transaction. The declarations made by the Judge were to that effect.
The appellants say that paragraph [68] confirms their initial claim that the declarations were false.
Discussion
Our first reason for concluding that justice does not require recall is that the appellants misconstrue the paragraph. There are two aspects to this. First, the paragraph is expressly made as an observation and is not part of the Court’s reasoning process. Secondly, Venning J, the Commissioner, Goddard J in the High Court and this Court all dealt with the matter on the basis that some liability to the Commissioner of Inland Revenue could be established. Whether or not that was in fact the case was neither here nor there.
It follows that this Court made no finding about the investors’ intentions. To make this position plain, the critical findings in our judgment were twofold. First, we concluded that the idea of some sort of asymmetry of knowledge between the Judge and the parties to the litigation before him involving the Commissioner of Inland Revenue was fanciful. Secondly, we concluded that the Commissioner was correct to consider the Judge’s knowledge of the 1992 events at the time recusal was raised and that the Commissioner was entitled to make the findings he did. On the basis of those findings, there could be no suggestion at all that there was material non-disclosure.
Accordingly, we agree with counsel for the Commissioner that the recall argument in effect seeks to rerun the essential argument dismissed in this Court and in the High Court that the Commissioner should have proceeded on the basis that the appellants’ allegations about irregularities in 1992 were correct, rather than treating them as irrelevant and focusing on the Judge’s knowledge. The bottom line is that the Commissioner, like the High Court and this Court, found that there was no material non-disclosure in a situation where the Judge did not know of any alleged irregularities.
Our second reason for declining the application for recall is that there is no good reason to allow the appellants to reargue the matter on a different basis now. We say that for three reasons. First, as described in the judgment, the complaints and allegations made against the Judge have been something of a moveable feast.[6] Both Venning J and the Commissioner have had to respond to the various shifts in detail and in the focus of the complaints over a number of years. It is not in the interests of justice to require the parties now, at least four years later, to have to react to yet another shift in the argument. It is relevant in that respect that the appellants have been represented throughout by senior counsel.
[6]At [22]–[35].
Secondly, as is apparent from the judgment as a whole, we considered that the appellants were quite right to abandon the argument that the declarations were deliberately false. The first point made in the section of our judgment in which paragraph [68] appears is that “the allegations of deliberate concealment and cover up were inherently improbable”.[7] We went on to say that, “[n]ot surprisingly, these allegations are not now pursued”.[8]
[7]At [65].
[8]At [65].
Finally, the High Court and this Court have found these proceedings were an abuse of process. The application for recall may be construed as perpetuating that abuse. We cannot put the matter any better than expressed by Mr Taylor in the context of his submission that there was no proper basis for the allegation that the Judge knowingly signed a false declaration. The written submissions state:
The applicants, before this Court, in their counsel’s words “with the benefit of the more dispassionate views afforded by the passage of time …” properly accepted that the declaration should be regarded as correct and withdrew the allegation that the declaration was false.
For the applicants, through senior counsel, to seek to go back on that concession is the plainest possible evidence that these proceedings constitute an abuse of process, not only because they have been prosecuted for improper purposes, but also because this allegation has been raised again without any proper foundation in fact. The fact that the parties, and their counsel, seem to think they can make this allegation, withdraw it and then make it again as they please is, it is submitted, clear evidence that these proceedings are vexatious and an abuse of process.
We agree.
Result
In these circumstances, we agree with counsel for the first respondent and for the Judge that the appellants should pay indemnity costs, that is, the actual costs incurred by the first respondent and the Judge in relation to the recall application and usual disbursements. We order accordingly. The application for recall is dismissed.
Solicitors:
Wynyard Wood, Auckland for Appellants
Gault Mitchell Law, Wellington for First Respondent
Bell Gully, Wellington for Justice Venning
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