DAVINA VALERIE REID AND NEW ZEALAND LAW SOCIETY

[2024] NZCA 567

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA176/2024
 [2024] NZCA 567

BETWEEN	DAVINA VALERIE REID Applicant
AND	NEW ZEALAND LAW SOCIETY Respondent

Court:	Thomas and Hinton JJ
Counsel:	J Mason for Applicant P N Collins for Respondent
Judgment: (On the papers)	6 November 2024 at 3.30 pm

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Thomas J)

1. Ms Reid’s application for leave to bring a second appeal was declined by this Court on 22 August 2024.[1]  The New Zealand Law Society | Te Kāhui o Aotearoa (NZLS) had opposed the application.  We made a costs order in favour of NZLS for a standard application on a band A basis, together with usual disbursements.[2]

   [1]Reid v New Zealand Law Society [2024] NZCA 399.

   [2]At [56].

2. NZLS seeks costs and disbursements totalling $2,207.52.  Counsel for Ms Reid has responded by memorandum requesting that the Court rescind its costs order under r 8 of the Court of Appeal (Civil) Rules 2005 (the Rules) and adjourn consideration of costs until Ms Reid’s appeal against the refusal of legal aid is finally determined.  The grounds relied on are:

   (a)counsel did not have the opportunity to address costs because the application was dealt with on the papers;

   (b)the applicant is impecunious;

   (c)costs may be awarded in the High Court following its substantive and leave decisions if legal aid is declined;

   (d)the applicant has instructed her counsel to appeal the Legal Aid Tribunal’s refusal of legal aid; and

   (e)the Court of Appeal was not aware of Ms Reid’s legal aid status at the time of judgment.

3. Ms Reid sought costs against NZLS in her application for leave to appeal.  Submissions on costs are expected as part of submissions on an application or appeal, and Ms Reid was aware of this as a result of the notice of fixture.  NZLS sought costs in its submissions.  Ms Reid therefore knew NZLS’s position on costs and that these would be addressed in the judgment.  Furthermore, Ms Reid filed reply submissions but did not comment on costs.

4. The costs order was included in our judgment.[3]  Rule 8 allows the Court to correct an accidental slip or omission.  It does not apply to these circumstances.  Ms Reid’s memorandum is more correctly considered as an application for recall of the judgment under r 8A of the Rules.

   [3]At [56].

5. There are three categories of cases where recall may be granted:[4]

   (a)since the hearing there has been a change to a relevant statute or regulation, or a new judicial decision of relevance and high authority has been issued;

   (b)counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or

   (c)for some other “very special reason” justice requires the judgment be recalled.

   [4]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; cited with approval in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

6. We are not persuaded that the matters raised on behalf of Ms Reid fall within any of those categories.  NZLS can be expected to await the result of the legal aid appeal.  If Ms Reid’s appeal is unsuccessful, then it is for NZLS to consider whether to enforce the costs award given the indication that Ms Reid is impecunious.  How that is dealt with is a matter for NZLS.

Result

1. The application to recall this Court’s judgment of 22 August 2024 is declined.

Solicitors:
Phoenix Law Ltd, Wellington for Applicant
New Zealand Law Society | Te Kāhui Ture o Aotearoa, Wellington for Respondent