Chang-Hooker v Rooke

[2013] NZHC 1294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-006074 [2013] NZHC 1294

BETWEEN  SANDY CHANG-HOOKER Appellant

ANDDAVID JOHN ROOKE Respondent

Hearing:                   31 May 2013

Appearances:           Appellant in Person

T C Wu for the Respondent

Judgment:                31 May 2013

[ORAL] JUDGMENT OF WYLIE J

S Chang-Hooker, Auckland

T C Wu, Manukau

CHANG-HOOKER v ROOKE [2013] NZHC 1294 [31 May 2013]

Introduction

[1]      The applicant, Ms Chang-Hooker, has filed an  application seeking that  I should recall a decision issued by me dated 6 March 2013.  In that decision, I struck out a notice of appeal filed by Ms Chang-Hooker and vacated a hearing date for the hearing of that appeal.  I reserved to the respondent, Mr Rooke, the right to apply for costs.

Background

[2]      To understand the background to this matter, it is necessary to refer to its history, albeit briefly.

[3]      In  2005,  Mr  Rooke  undertook  legal  work  for  Ms  Chang-Hooker.    He rendered a bill to her for $9,478.20.  Ms Chang-Hooker failed and/or refused to pay the bill.

[4]      Ultimately,  Mr  Rooke  took  proceedings  to  try  to  recover  the  monies  he asserted were outstanding and owing to him.   He filed proceedings in the District Court at Manukau, claiming the original invoice together with accumulated interest and costs.  Ms Chang-Hooker failed to take any steps.  She did not file a response to the claim or an information capsule and, on 22 November 2010, judgment was entered against her by default.  Judgment was sealed on that day.

[5]      On 18 January 2011 Judge Andrée Wiltens, sitting in the District Court at Manukau,  struck  out  a  counterclaim  which  had  subsequently  been  filed  by Ms Chang-Hooker.

[6]      Ms Chang-Hooker then applied to set aside the 22 November 2010 judgment. At an interlocutory hearing on 27 June 2011, Judge Andrée Wiltens put in place a timetable to deal with this application, and on 28 July 2011, he directed that costs (presumably security for costs) were to be fixed at $2,051, that this sum was to be paid within 14 days, and that in default, the “defence application to be struck out”.

[7]      On 16 September 2011, after Ms Chang-Hooker failed to pay the costs as directed, Judge Andrée Wiltens struck out her application to set aside the judgment of 22 November and ordered her to pay further costs totalling $7,775.29.

[8]      Ms Chang-Hooker then filed a notice of appeal to this Court.  The notice of appeal referred to the decision made by Judge Andrée Wiltens on 16 September

2011.   It also referred to the earlier orders made on 22 November 2010 and on

28 July 2011.  The appeal was called before me on 1 November 2011.  Inter alia, I noted that the notice of appeal referred to the earlier orders.   I recorded that any appeal in respect of those orders was out of time, and noted that if Ms Chang-Hooker wished to appeal those decisions, then she had to file the appropriate interlocutory application and supporting affidavit.

[9]      In the event, Ms Chang-Hooker did apply for leave to appeal the earlier judgment out of time.  This application came before Brewer J on 13 March 2012. Ms Chang-Hooker failed to appear.   Brewer J recorded that Ms Chang-Hooker’s appeal against Judge Andrée Wiltens’ decision of 16 September 2011 was within time, but he declined to grant her leave to appeal against the other decisions.   He noted as follows:

I have had an opportunity to read the papers prior to coming to Court. Ms Chang-Hooker had an insurmountable task on the papers because, firstly, there are inadequate explanations as to why appeal rights were not exercised within time and, secondly, the merits she puts forward are not able to be adjudicated properly on appeal.

…

However,  on  the  merits,  Ms  Chang-Hooker  is  essentially  saying  that Mr Rooke has deliberately breached District Court Rules and has, in her words, lied to the Court on purpose.  In essence, she is submitting that he has obtained decisions of the Court through fraud.   Where those sorts of allegations are made, the proper course is not to seek to appeal to a higher Court but to file fresh proceedings in the Court in which it is alleged the fraud was committed and then seek to prove the fraud.  Of course, failure to do so will meet a stern response when it comes to costs.

[10]     The substantive appeal was called before Rodney Hansen J on 22 March

2012.   He declined to deal with the matter because at that stage, there was still a possibility that  Brewer J’s judgment might be challenged by Ms Chang-Hooker. Hansen J did record as follows:

Although the appellant has sought to advance argument in support of the appeal which do not require an attack on the earlier decisions, my view is that there is no prospect of this appeal succeeding while the earlier decisions stand.   The question that has exercised my mind is whether I should, nevertheless, proceed to dispose of the appeal or adjourn the hearing to await the disposal of any challenge to Brewer J’s judgment.

Mr  Rooke,  understandably, has sought to  persuade me  to  determine  the appeal.  Both in the District Court and now in this Court he has been obliged to expend considerable time and cost in dealing with interlocutory steps which, to date, have served only to postpone the time before he can enjoy the fruits of his judgments.

However, in all the circumstances I have come to the view that to dispose of the appeal today would only unnecessarily add to the procedural imbroglio without real benefit to either party.   A decision today would have to be revisited if the appellant obtains leave to appeal the earlier decisions.  She is on clear notice, however, that if she does not proceed promptly to negate the effect of Brewer J’s judgment, there is no prospect of her disturbing the judgments of the District Court.

[11]     The matter  was  called  before  me  again  on  1  May 2012.    By that  date, Ms Chang-Hooker had filed an application seeking to set aside Brewer J’s decision. I put in place a timetable order to bring that matter on for hearing.

[12]     The application was heard by Goddard J on 14 June 2012.  Her decision in relation  to  it issued  on 18 July 2012.   The application  to  set aside Brewer J’s judgment was dismissed and costs were ordered in favour of Mr Rooke on a 2B basis.  Goddard J commented as follows:

The failure to appear before Brewer J finds context in the history of the proceedings from the time that judgment by default was entered by a Deputy Registrar  in  the  District  Court  on  22  November  2010,  followed  by Ms Chang-Hooker’s history of non-responsiveness to court proceedings and to orders and directions lawfully made.   While she proffered numerous excuses during the hearing before me relating to those omissions and oversights, these were not prima facie plausible as in the main they were assertions that she had never received notifications from the District Court and thus was unaware of any orders for timetabling or dates for compliance with directions made.

In relation to a defence to the entering of judgment on 22 November 2010 and whether that has substance, there are further considerable difficulties. The various decisions of the District Court against which Ms Chang-Hooker wishes to appeal all relate to that one matter: that is, the non-payment of legal fees incurred by her in 2005 following Mr Rooke’s representation of her in the High Court and the Family Court.  As I noted at the outset, there has been no appropriate challenge to those fees having been properly incurred.  They should properly have been the subject of a costs revision.  It is difficult to see how the High Court can now sensibly adjudicate on a fees

dispute   and   I   agree   with   the   observations   of   Brewer J   that   an

“insurmountable task” faces Ms Chang-Hooker on the papers.

In contrast to her conduct, Mr Rooke appears to have taken all proper steps in accordance with required procedure and has been successful at every step of the way.   He deserves finality.   I concur with Brewer J’s decision to dismiss Ms Chang-Hooker’s applications for leave to appeal out of time when she failed to appear, rather than simply adjourning them to a further date.  To allow a further indulgence would amount to permitting an abuse of the Court processes, and only to delay what appears to be an inevitable outcome.

[13]     Ms Chang-Hooker then sought a stay of all the various judgments which had been issued against her.  That application came before Ellis J on 23 October 2012 and she issued a judgment in relation to it on 26 October 2012.  The applications for the stay were dismissed.  She noted as follows:

The only “live” appeal relates to the 16 September 2011 decision.  But as was previously noted by Rodney Hansen J that appeal’s prospects of success are  necessarily  contingent  on  Ms  Chang-Hooker’s  ability  to  revisit  or overturn the earlier decisions.  And Ms Chang-Hooker’s attempts to upset those earlier decisions have failed and cannot be taken further.   It follows that the likelihood of her succeeding in this extant appeal is remote, at best.

[14]     At this point, the only live matter was Ms Chang-Hooker’s appeal against

Judge Andrée Wiltens’ decision of 16 September 2011.

[15]     That appeal was called before me on 13 November 2012.   At that stage, Mr Deliu was acting on behalf of Ms Chang-Hooker.  I put in place a timetable and gave various directions to ensure that the appeal could be brought on for hearing. Inter  alia,  I  directed  Ms Chang-Hooker  to  file  and  serve  a  common  bundle  of numbered and indexed copies of all relevant documents no later than 20 working days after the date of the conference.

[16]     The matter was called before me again on 26 February 2013.   Ms Chang- Hooker had partially complied with the earlier directions given by me.  She had not however filed a complete bundle of documents.  In a minute, I noted that Ms Chang- Hooker claimed to have misunderstood my direction.  I also recorded that I made it clear to Ms Chang-Hooker that the common bundle must include all material which is relevant to the appeal, and that what was required was a discreet bundle which the Court and counsel could refer to without having to go backwards and forwards

through the very large number of papers that this matter has generated.  I directed that a supplementary bundle was to be filed and served by Ms Chang-Hooker on or before 5.00 pm on Friday, 1 March 2013.  I made an unless order, recording that if the supplementary bundle was not filed and served prior to that date, that the appeal was to be struck out without further notice to the parties.

[17]     In the event, Ms Chang-Hooker filed the supplementary bundle.  She did not serve it within the time limit specified by me.  Given Ms Chang-Hooker’s persistent failure to comply with Court directions, I struck out her appeal on 6 March 2013.

The Application

[18]     Ms  Chang-Hooker’s  application  for  recall  is  based  upon  r  11.9  of  the

High Court Rules.  It provides as follows:

11.9     Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[19]     Clearly, the rule gives an unfettered discretion to the Court.  Nevertheless, the courts have traditionally regarded the recall of a judgment as being a serious step, to be taken only in reasonably well identified situations.  Those situations are discussed in the judgment of Wild CJ in Horowhenua County v Nash (No 2).[1]

[1] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

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.

This  statement  has  been  applied  and  accepted  as  appropriate  both  by  the

Supreme Court  in  Saxmere  Company  Limited  v  Wool  Board  Disestablishment

Company Limited,[2] and by the Court of Appeal in several subsequent cases.

[2] Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76.

[20]     Here, the only possible ground for recall is the third category identified in Horowhenua  County  —  namely that  for some  other very special  reason  justice requires that the judgment be recalled.  The Court of Appeal has made it clear that this category is intended to be narrow and that cases appropriate for recall on this basis are likely to be rare.[3]

[3] Unison Networks Ltd v Commerce Commission CA 284/05, 7 March 2007.

Submissions

[21]     I heard at some length this morning from Ms Chang-Hooker.  Essentially, she is seeking one comprehensive hearing to hear all aspects of the case, going right back to the default judgment entered against her on 22 November 2010.  She took me through the merits as she sees them.  She submitted that Judge Andrée Wiltens’ decisions were not fair, and that she was let down by solicitors who she asserts were incompetent.  She asserted that she was not served with a copy of the Court order made on 22 November 2010.   She argued that I need to consider the underlying merits of the case, in determining whether or not to recall my judgment of 6 March

2013.

[22]     Mr Wu, appearing on behalf of Mr Rooke, submitted that it is not open to Ms Chang-Hooker, in the context of her recall application, to seek to re-litigate matters already considered, or to challenge substantive findings of fact and law already made.  He argued that Ms Chang-Hooker has failed to establish any grounds which justify the proposed recall and that her submissions relied on matters that have previously been decided against her either by the District Court or by this Court.

Analysis

[23]     I  am  not  persuaded  that  there  is  some  other  very  special  reason  which requires that my judgment be recalled.

[24]     This matter has been outstanding for some considerable time.   Ms Chang- Hooker has had every opportunity to address the substantive issues about which she complains.  Rights of appeal or challenge were open to her at every step.  In some

cases, she failed to exercise those rights promptly.  On other occasions, she exercised

the rights, but then failed to appear to support her arguments when the matter was called before the Court.  She has consistently breached Court orders.  The position was made patently clear to her at the hearing on 26 February 2013.   Ms Chang- Hooker acknowledged that she understood the effect of the unless order made by me and confirmed that she was able to comply with the directions which I put in place. She then failed to do so.

[25]     Ms Chang-Hooker argued that there was no prejudice to Mr Rooke.

[26]     That is not the point.  She breached a Court order, in clear knowledge of the consequences of so doing.

[27]     She  argued  that  she  was  distressed  at  the  time  and  that  Mr  Rooke  was harassing her by seeking payment of his long overdue account.

[28]     Again, this is not the point.

[29]     In the context of a recall application, it is not appropriate to seek to reopen matters which have already been decided.  That is precisely what Ms Chang-Hooker has endeavoured to do in this case.  I cannot see that justice requires that my decision of 6 March 2013 should be recalled.  There is no proper or principled basis on which to do so. The application for recall is dismissed.

Costs

[30]     Mr Wu signalled that Mr Rooke will be seeking increased costs.  He was not in a position to fully address me in relation to the issue.   In the circumstances, I direct that any application for costs is to be filed and served within 10 working days of the date of this oral judgment.  Any response by Ms Chang-Hooker is to be filed and served within a further 10 working days.  I will then deal with the issue of costs

on the papers, unless I require the assistance of Ms Chang-Hooker and Mr Wu.

Wylie J