Corbett v Patterson

[2014] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND

CA303/2011
[2014] NZCA 145

BETWEEN	JOHN HILLARY CORBETT Appellant
AND	BRUCE REGINALD PATTERSON AND ROBERT CORBETT WESTERN Respondents

Court:

Ellen France, Harrison and Wild JJ

Counsel:

Appellant in person
C J R Baird for Respondents

Judgment:

(On the papers)

16 April 2014 at 3 pm

JUDGMENT OF THE COURT

AThe application for recall is dismissed.

BThe appellant must pay the respondents costs calculated as for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

1. In a judgment delivered on 15 December 2011, Mr Corbett’s application for leave to adduce further evidence in support of his appeal in this Court was dismissed.[1]  Mr Corbett by an affidavit dated 27 February 2014 seeks recall of that judgment.  The application is opposed.

Background

[1]Corbett v Patterson [2011] NZCA 649.

1. Mr Corbett’s application to adduce further evidence related to his appeal against a decision of Priestley J finding that Mr Corbett is an incapacitated person and appointing a litigation guardian.[2]  That appeal has a hearing date of 22 May 2014 in this Court.  The appeal arises in the context of Mr Corbett’s proceeding against the respondents who are the trustees of a family trust.

The application for recall

[2]Corbett v Western [2011] 3 NZLR 41 (HC).

1. The leading statement in New Zealand as to recall of judgments remains that of Wild CJ in Horowhenua County v Nash (No 2):[3]

   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]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633. The test was recently restated by this Court in Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23] with reference to Horowhenua County v Nash (No 2); see also Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [10]; Ngahuia Reihana Whanau Trust v Flight CA23/03, 26 July 2004 at [3]; and Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13].

2. Applying these principles to this case, we are satisfied there is no basis for a recall of the judgment.  There is no suggestion that either the first or second categories referred to by Wild CJ in Horowhenua County v Nash (No 2) apply.  That leaves the third category, that is, where for some other “very special reason” justice requires recall.  As to that category, the matters raised by Mr Corbett seek to relitigate issues already considered by the Court. 

3. One example will suffice.  Dr Philip Brinded, a consultant forensic psychiatrist, provided reports to the High Court on Mr Corbett.  Dr Brinded was not cross-examined.  Mr Corbett wished to cross-examine him on the appeal.   We determined this proposed evidence was neither fresh nor cogent.  In terms of the freshness of this evidence, Mr Corbett now advances an explanation as to why Dr Brinded was not cross-examined in the High Court which seems to relate to his expectation his status would be borne out by other evidence.  This does not constitute a special reason requiring recall.  Nor do any of the other matters raised by Mr Corbett meet that test.

4. The application for recall is dismissed.  The respondents seek costs on the recall application.  There is no reason why costs should not follow the event.  The respondents were put to the cost of responding to the application.  Accordingly, we order the appellant to pay the respondents costs on the recall application calculated as for a standard application on a band A basis and usual disbursements.

Solicitors:
Quinn Law, Auckland for Respondents