Carter v M HC Auckland CIV 2003-485-1666

[2008] NZHC 2153

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2003-485-1666

IN THE MATTER OF     of an application for review under the

Judicature Act 1972 Part I and/or the Bill of Rights Act 1990 and/or an appeal under the Family Proceedings Act 1980 Section 174 and Section 42(2)

BETWEEN  JOHN HOWARD CARTER Applicant

AND  M

First Respondent

ANDTHE FAMILY COURT AT WELLINGTON

Second Respondent

Hearing:         5 February 2008

Counsel:         J H Carter (In Person)

No appearance for First Respondent

K Warburton for Second Respondent

Judgment:      5 February 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      Mr Carter has applied under Rule 542 of the High Court Rules for recall of a

judgment delivered by me on 14 June 2005 on proceedings which had been commenced by Mr Carter in relation to the dissolution of his marriage. The proceeding purported to be an appeal against an Order of the Family Court making the Order for dissolution, or an application for judicial review of that decision. In

the judgment I made an order dismissing the proceedings.

CARTER V M AND ANOR OJ HC WN CIV-2003-485-1666  5 February 2008

[2]      The ordinary remedy of a litigant who is dissatisfied with a judgment of this

Court is to exercise the right of appeal to the Court of Appeal which exists, subject to

of course to observance with the relevant time limits for procedural requirements. There is an alternative procedure available for dealing with cases where some clear error has been made which the Judge recognises and is able to correct without requiring the parties to take the additional expense and time which is involved in an appeal to the Court of Appeal.   That is the power to recall a judgment under Rule 542. That power however must be exercised with restraint.  That was recognised in the  leading  statement  of  the  principles  to  be  applied  which  is  that  of  Wild  CJ  in Horowhenua County v Nash (No 2) [1968] NZLR 632, at 633 where he said:

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.

[3]      That statement was reaffirmed by the Court of  Appeal  in  Unison  Networks Limited  v  Commerce  Commission  [2007]  NZCA49  where  the  need  for  restraint  in the use of that power was reaffirmed.

[4]      Mr Carter submits that there is new material which was not raised by Counsel

at the hearing.  The Court was on that occasion greatly assisted by the submissions which were made as amicus by Mr Collins QC.  The issues which Mr Carter now seeks to raise can be summarised under three headings.  Firstly, he submits that the position of Magna Carta and its implications for these proceedings was not properly addressed and that relevant materials in relation to that were not adduced. Secondly,

he submits that the situation of his mental state was not  adequately addressed  and appropriate authorities were not referred to. Thirdly, and perhaps most importantly,

he  submits  that  the  Court’s  duty  to  promote  reconciliation  was  not  properly addressed.  There is in essence also a fourth matter, in that he submits that in dealing with the question of the date of sealing of the final order for dissolution, the proper effect was not given to the wording of the order.

[5]      I do not propose to deal in any detail with those submissions. On an application for recall a litigant does not have an opportunity to reargue the case or to bolster the arguments which were raised at the original hearing.   It is essentially a matter for the Judge to determine whether the matters raised so affect the reasoning that it would be wrong for the original decision to stand.  It is not an opportunity for the  Judge  to  reconsider  or  have  second  thoughts  about  his  or  her  judgment.   It  is sufficient therefore for me to say that none of the matters raised by Mr Carter in my view  come  remotely  close  to  the  situations  where  the  judgment  could  be  recalled applying the principles stated by Wild CJ and affirmed by the Court of Appeal.

[6]      The matter is however complicated by a joint memorandum which has been filed by Mr Carter and by his former wife. In that they indicate that they are presently attending relationship counselling and wish the hearing of the recall application to be adjourned. I have considered carefully whether that course would be appropriate. Mr Carter has emphasised, and he is right in that, the importance of reconciliation. However, it must be borne in mind that there is in force an order dissolving this marriage. That has not been appealed. Section 174 of the Family Proceedings Act 1980 limits the time within which an appeal may be brought, and provides that that cannot be extended.  The obvious reason for that is that marriage is a legal status and there must be certainty as to that status at all stages. That decision of the Family Court remains in force. It must remain in force, regardless of the outcome of this recall application. The existence of that order for dissolution does not  prevent attempts at reconciliation, but it would be quite wrong to re-open the validity of that order, or any proceedings relating to the validity of that order, because of the effect which that would have on the certainty of status which must be paramount.

[7]      For these reasons I am not prepared to adjourn the application for recall and it must be disposed of.  My decision is that I do not consider that the matters raised by Mr Carter are such that the judgment should be recalled and the application is accordingly refused.

[8]      As Counsel has no instructions on  issues  of  costs,  that  question  will  be

reserved.

“A D MacKenzie J”

Solicitors:            Crown Law Office, Wellington for second and third Defendants