Erwood v Glasgow Harley - [2007] NZCA 88

IN THE COURT OF APPEAL OF NEW ZEALAND
CA52/06
[2007] NZCA 88
BETWEENROBERT ERWOOD

Applicant

ANDGLASGOW HARLEY

First Respondent
ANDRAYLEE PATRICIA HARLEY

Second Respondent

Hearing:4 December 2006

Court:O'Regan, Robertson and Gendall JJ
Counsel:A C Beck for Applicant

N A Till for First Respondent
J A Farmer QC for Second Respondent

Judgment:21 March 2007 at 12 noon

JUDGMENT OF THE COURT TO RECALL JUDGMENT OF
11 DECEMBER 2006

AThe application dated 8 January 2007 for recall of the judgment of this Court of 11 December 2006 is granted. We recall the judgment and reissue it with amendments to paragraph B of the judgment and paragraph [34] of the reasons.
BThe application dated 15 January 2007 and the undated application received by the Court on 6 March 2007 seeking the recall of the same judgment are dismissed.

C        We make no award of costs.
REASONS OF THE COURT
(Given by O’Regan J)
[1]       On 11 December 2006, we issued our judgment declining the applicant’s application for leave to appeal and awarding costs of $750 against the applicant. We now have before us an application to recall that judgment. The application was filed by counsel for the applicant, Mr Beck, on 8 January 2007. He pointed out that the applicant was in receipt of a grant of legal aid in respect of the application for leave to appeal, and that the award of costs against the applicant should not therefore have been made. He asked us to recall the judgment and reissue it with the costs award deleted.
[2]       The first respondent opposed the recall. It argued through counsel that costs could be awarded in exceptional circumstances against a legally aided litigant: s 40(2) of the Legal Services Act 2000. It also argued that there was now evidence indicating that the applicant had substantial assets which would call into question his entitlement to legal aid.
[3]       Neither of the points raised by the first respondent was before the Court at the time of the hearing of the application for leave to appeal. In our view it is inappropriate to now deal with them in the context of an application for recall of the judgment.
[4]       The Court registry staff have issued under seal a notice of the outcome of the judgment under r 50 of the Court of Appeal (Civil) Rules 2005, but the judgment has not been sealed as contemplated by r 51 of those rules. We propose to consider the application for recall on the basis that the judgment of 11 December 2006 has not been perfected. The principles governing recall in of an unperfected judgment are set out in Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (HC).
[5]       The award of costs against the applicant was made on the mistaken assumption that he was not legally aided. We accept that the applicant was, in fact legally aided. In those circumstances we are satisfied that there is a “very special reason” requiring that the judgment be recalled:

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.

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Details

Case: [2007] NZCA 88
Decision Date: 21 March 2007

CaseChat Overview and Summary

The appeal in this matter involves Robert Erwood as the applicant and Glasgow Harley as the first respondent, with Raylee Patricia Harley as the second respondent. The applicant had previously applied for leave to appeal a decision and had been awarded costs. However, the applicant subsequently applied for the recall of this judgment on the basis that he was receiving legal aid, which should have precluded the award of costs against him. The second and third applications for recall were filed by the applicant himself, along with extensive handwritten material in support. The court was required to decide whether the original judgment could be recalled due to the mistaken assumption that the applicant was not legally aided, and whether the additional applications provided any further basis for recall.

The court noted that the original judgment had not been perfected as it had not been sealed as required by the rules. The court held that the award of costs against the applicant was made under a mistaken assumption that he was not legally aided, which constituted a "very special reason" for recalling the judgment. The court was not persuaded to consider the first respondent's arguments regarding the applicant's assets and entitlement to legal aid, as these issues were not before the court at the time of the original hearing. The court found that the additional applications for recall did not provide any further basis for recalling the original judgment.

The Court of Appeal recalled the original judgment and reissued it without the award of costs. The court dismissed the additional applications for recall, finding that they did not disclose any additional basis for recalling the judgment. No costs were awarded in relation to the applications for recall.

Orders