Corbett v Western

[2010] NZCA 369

IN THE COURT OF APPEAL OF NEW ZEALAND

CA166/2010
[2010] NZCA 369

BETWEENJOHN HILLARY CORBETT

Appellant

ANDROBERT CORBETT WESTERN AND BRUCE REGINALD PATTERSON

Respondents

Court:Ellen France, Randerson and Stevens JJ

Counsel:Appellant in Person

C J R Baird for Respondents

Judgment:16 August 2010 at 11.30 a.m.

JUDGMENT OF THE COURT

The application by the appellant for recall of the judgment is dismissed.

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REASONS OF THE COURT

(Given by Randerson J)

[1]        The appellant applies for recall of our judgment issued on 25 June 2010[1] in which we dismissed his application for an extension of time to appeal.

[1]      Corbett v Western [2010] NZCA 270.

[2]        We are satisfied that there is no basis to recall the judgment.  As this Court has recently restated in Erwood v Maxted:[2]

[2]      Erwood v Maxted [2010] NZCA 93 at [3] – [5].

We are obliged to say that the filing of most of these memoranda by Mr Erwood is an abuse of process.  His constant efforts seeking to revisit determinations of this Court are not acceptable.  The grounds upon which a judgment may be recalled are strictly limited.  The leading statement in New Zealand as to recall of judgments is that of Wild CJ in Horowhenua County v Nash(No 2)[3]:

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

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.

That statement was most recently re-affirmed by the Court of Appeal in Unison Networks Ltd v Commerce Commission.[4]  In Ngahuia Reihana Whanau Trust v Flight,[5] Anderson P said at [3]:

It is becoming a matter of concern not just to this Court but to others in the western common law system that disaffected litigants, usually appearing in person, repeatedly make application for recall of judgments which they steadfastly refuse to accept. It is timely to characterise plainly unmeritorious applications of that sort as an abuse of the Court’s process and to reaffirm the rarity of legal justification for recalling judgments.

Similarly in Faloon v Commissioner of Inland Revenue, at [13]:[6]

While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

[4]      Unison Networks Limited v Commerce Commission [2007] NZCA 49 at [10].

[5]      Ngahuia Reihana Whanau Trust v Flight CA23/03 26 July 2004.

[6]      Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC).

[3]        The grounds advanced by Mr Corbett in support of his application for recall are numerous.  As with his previous submissions, the material he has provided is difficult to follow.  However, the bulk of it appears to be canvassing the material which he had already placed before the Court or material regarding the administration of the Family Trust and is not relevant.

[4]        There is no suggestion that there has been any material change in statute or case law or that any legislative provision or court decision of plain relevance has been overlooked.  We are not persuaded that there is any other special reason to recall the judgment.

[5]        In the circumstances, the application for recall of the judgment is dismissed. 

[6]        We make no order as to costs.

Solicitors:

Quinn Law, Auckland, for Respondents.