Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals Incorporated

[2024] NZHC 2467

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-0017

[2024] NZHC 2467

UNDER

Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of
Rights Act 1990 and Declaratory Judgments Act 1908

IN THE MATTER OF

Proceedings moving for an application for

judicial review, extraordinary writs, a Bill of Rights claim and a petition for declaratory relief

BETWEEN

LENA NEDELCHEVA DUNCAN

Applicant

AND

THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED

First Respondent

THE DISTRICT COURT

Second Respondent

On the papers

Counsel:

The applicant in person

N H Brown for the first respondent

Judgment:

30 August 2024

JUDGMENT OF CAMPBELL J

[Application to recall judgment]

This judgment was delivered by me on 30 August 2024 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DUNCAN v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED [2024] NZHC 2467 [30 August 2024]

[1]                 In a judgment dated 5 July 2024, I struck out all parts of Ms Duncan’s amended statement of claim brought against the first respondent, the SPCA.1

[2]                 On 2 August 2024, Ms Duncan filed a notice of appeal against my judgment. On 10 August 2024, she applied to recall my judgment. This judgment deals with that application.

Legal principles

[3]An unsealed judgment may be recalled in three categories of case:2

(a)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;

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

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

[4]                 It is generally not appropriate for a court to recall a judgment once an appeal has been filed against it.3

Decision

[5]                 Ms Duncan’s application to recall the judgment is detailed. But Ms Duncan does not clearly identify the basis upon which she says I should recall my judgment. I infer that she says that this falls within the third category of case, that there is a “very special reason” that justice requires that I recall my judgment.

1      Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2024] NZHC 1818.

2      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

3      Russell v Klinac HC Whangarei AP18/01, 11 December 2001, O’Regan J; and Justitiae Trustee Co Ltd v NZF Nominees Ltd [2021] NZHC 23223 at [20]–[27].

[6]                 To a large extent Ms Duncan’s application raises arguments that she could have but did not raise before me at the original hearing on 13 June 2024. These are not matters that justify recall.

[7]                 Ms Duncan says that I failed to consider critical facts in reaching my judgment. She says my judgment was therefore wrong. Such a point does not justify recall. It is, if anything, an appeal point.

[8]                 Ms Duncan also says that at the original hearing I said I would “direct further submissions from [Ms Duncan] regarding unclear points about the warrants” but I then failed to do so. That is incorrect. I said I would direct further submissions about concerns that I had that other parts of Ms Duncan’s amended statement of claim were an abuse of process and should be struck out. I directed those submissions in a minute dated 5 July 2024. In any event, any claim that Ms Duncan may have that I did not give her the opportunity to be heard can be pursued on the appeal she has brought.

Result

[9]I decline Ms Duncan’s application to recall my judgment.

[10]             Counsel for the SPCA did not file any submissions on the recall application.  I therefore make no order as to costs.

Campbell J