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: Horowhenua County v Nash at 633.  We therefore propose to recall the judgment of 11 December 2006 and reissue it in a form which reflects no award of costs.  The reissued judgment will be delivered immediately after the delivery of this judgment.

[6]       In addition to the application for recall filed by Mr Beck on the applicant’s behalf, we have received two further applications for recall which were filed by the applicant himself, and a large amount of handwritten material filed in support of them.  The first was dated 15 January 2007 and the second was undated but received by the Court on 6 March 2007.  We have read these applications and the accompanying material and are satisfied that they do not disclose any additional basis on which the judgment of 11 December 2006 ought to be recalled.  The additional applications for recall are accordingly dismissed.

[7]       We make no award of costs in relation to the applications for recall to which this judgment relates.

Solicitors:
Peter Sara, Dunedin for Applicant
Raymond Donnelly, Christchurch for First Respondent
Russell McVeagh, Wellington for Second Respondent