Ding v James - [2022] NZSC 58

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 1/2022
SC 36/2022
[2022] NZSC 58

BETWEEN	CAOPING DING AND BARRY BAI Applicants
AND	THOMAS EDMUND WILLIAM JAMES First Respondent KEATON PRONK, IAIN MCLENNAN AND MCDONALD VAGUE LIMITED Second Respondents

Court:	Glazebrook and O’Regan JJ
Counsel:	Applicants in person B M K Pamatatau for First Respondent B L Martelli for Second Respondents
Judgment:	11 May 2022

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 25 March 2022 (Ding v James [2022] NZSC 28) is dismissed.
BThe application for leave to appeal in SC 36/2022 is dismissed.
CThere is no order as to costs.

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REASONS

The applicants applied for leave to appeal to this Court against two judgments of the Court of Appeal.[1] The application was dismissed by this Court in a judgment delivered on 25 March 2022 on the basis that this Court had no jurisdiction to hear and determine an appeal against the first Court of Appeal judgment and that the leave criteria were not met in relation to the second Court of Appeal judgment.[2]
[1]Ding v James [2021] NZCA 578 (Brown and Courtney JJ) [first CA judgment]; and Bai v James [2021] NZCA 652 (French and Collins JJ) [second CA judgment].
[2]Ding v James [2022] NZSC 28 [SC leave judgment].
The applicants also applied to the Court of Appeal for recall of the first Court of Appeal judgment. This was dismissed by the Court of Appeal in a judgment delivered on 14 March 2022.[3]
[3]Ding v James [2022] NZCA 56 (Brown and Courtney JJ) [CA recall judgment].
The applicants have now applied for a recall of the Supreme Court leave judgment. In addition the applicants have attempted to file an application for leave to appeal to this Court against the Court of Appeal’s recall judgment. The case officer in the Supreme Court declined to accept the latter application on the basis that there was no jurisdiction to consider it but ultimately it was accepted and referred to the present panel for decision.[4] This judgment deals with both the application for recall of the Supreme Court leave judgment and the application for leave to appeal to this Court against the Court of Appeal’s recall judgment.
[4]Slavich v R [2015] NZSC 195, (2015) 23 PRNZ 117 at [9].
The factual background is set out in the Supreme Court leave judgment.[5]

SC 1/2022 – application for recall of [2022] NZSC 28

[5]SC leave judgment, above n 2.

We deal first with the application to recall the Supreme Court leave judgment.
In Uhrle v R, this Court cited with approval the following passage from the decision of Wild CJ in Horowhenua County v Nash (No 2) as a convenient statement of these principles relating to recall of a judgment:[6]
[F]irst, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ding v James

Details

AGLC: Ding v James [2022] NZSC 58
Case: [2022] NZSC 58
Decision Date: 11 May 2022

CaseChat Overview and Summary

Caoping Ding and Barry Bai sought leave to appeal against two judgments of the Court of Appeal. They also applied for the recall of one of the Court of Appeal judgments, and now seek a recall of the Supreme Court's decision dismissing their application for leave to appeal. The Supreme Court dismissed the appeal and the recall application. The legal issues were whether the Court had jurisdiction to hear the appeal and whether there was a special reason to recall the Supreme Court judgment. The Court held that it had no jurisdiction to hear the appeal, and that there was no special reason to recall the judgment. The applicants were not entitled to leave to appeal and the application for recall was dismissed. There was no order as to costs.

Orders