Carter v Capital and Coast District Health Board

[2024] NZSC 102

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 119/2023
 [2024] NZSC 102

BETWEEN	JOHN HOWARD CARTER Applicant
AND	CAPITAL AND COAST DISTRICT HEALTH BOARD First Respondent
AND	HUTT VALLEY DISTRICT HEALTH BOARD Second Respondent
AND	ATTORNEY‑GENERAL Third Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	Applicant in person I H V Reuvecamp for First and Second Respondents S M Kinsler and C E Sinclair for Third Respondent
Judgment:	16 August 2024

JUDGMENT OF THE COURT

A        The application for recusal is dismissed.

B        The application for recall is dismissed.

C        There is no order as to costs.

____________________________________________________________________

REASONS

1. Mr Carter applies for the recall of our decision of 29 July 2024, dismissing his application for leave to appeal.[1]

Recusal

[1]Carter v Capital and Coast District Health Board [2024] NZSC 85 [Leave decision].

1. Mr Carter submits that the current panel should not decide this application.

2. There are no proper grounds put forward for the current panel members to recuse themselves.

Background

1. Mr Carter’s application for leave to appeal related to proceedings filed in the High Court.  The High Court had held that Mr Carter’s statement of claim disclosed no reasonably arguable cause of action.[2]

   [2]Carter v Capital and Coast District Health Board [2022] NZHC 3018 (Churchman J).

2. That decision was upheld by the Court of Appeal.[3]

   [3]Carter v Capital and Coast District Health Board [2023] NZCA 466 (Brown and Goddard JJ).

3. In dismissing his application for leave to appeal, this Court held that nothing raised by Mr Carter threw doubt on the reasoning of the Courts below.[4]

Grounds of application

[4]Leave decision, above n 1, at [10].

1. Mr Carter submits that there is a very serious reason the judgment should be recalled in that the Court did not take into account recommendations of the Royal Commission of Inquiry into Abuse in State Care.[5]  Mr Carter gives a number of matters he says are examples of this Court ignoring the Royal Commission’s recommendations. 

Our assessment

[5]Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith‑based Institutions Whanaketia: Through Pain and Trauma, from Darkness to Light (Wellington, 24 July 2024).

1. A decision of this Court, whether concerned with leave to appeal or a substantive appeal, is, and must be, final.[6]  A judgment will only be recalled in exceptional circumstances, being those identified in Horowhenua County v Nash (No 2), as applied by this Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2).[7]

   [6]Wong v R [2011] NZCA 563 at [13]; and Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [20].

   [7]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2]; and Green Growth No 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 115 at [20].

2. Mr Carter’s application does not raise any exceptional circumstances that would justify recall.  None of the examples given by Mr Carter appear to relate to recommendations made by the Royal Commission.  Rather, most of the examples effectively reprise submissions already dealt with in our judgment on the application for leave.  In the circumstances we do not consider the Royal Commission’s recommendations are relevant to whether or not Mr Carter’s statement of claim disclosed a reasonably arguable cause of action. 

3. There is thus no reason to recall our judgment.

Result

1. The application for recusal is dismissed.

2. The application for recall is dismissed.  As the respondents were not required to file submissions, there is no order as to costs.

Solicitors:
Vida Law, Wellington for First and Second Respondents
Meredith Connell, Wellington for Third Respondent