Erwood v Maxted

[2007] NZCA 245

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/06
[2007] NZCA 245

BETWEENROBERT ERWOOD

Appellant

ANDJANET MAXTED

First Respondent

ANDJANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD

Second Respondents

Hearing:16 April 2007

Court:O'Regan, Robertson and Wilson  JJ

Counsel:Appellant in person

G M Downing for Respondents

Judgment:15 June 2007 at 4 pm

JUDGMENT OF THE COURT

The application for recall is dismissed.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1] This is an application by Mr Erwood to recall this Court’s judgment of 30 April 2007, [2007] NZCA 161. In that judgment, this Court declined Mr Erwood’s application under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time to file the case on appeal and apply for a fixture. The consequence of this Court dismissing Mr Erwood’s application was that his appeal was deemed to be abandoned under r 43(1) of the Rules. The abandoned appeal was an appeal against a judgment of Wild J in which he dismissed Mr Erwood’s claim that his brother’s estate, which is administered by the second respondents, held a house subject to a trust in Mr Erwood’s favour. Ronald Young J had granted a stay of the judgment of Wild J to provide an opportunity for Mr Erwood to apply for legal aid to facilitate the appeal.

Background to the judgment for which recall is sought

[2]       At the hearing of Mr Erwood’s application under r 43(2), the lawyer appearing for Mr Erwood in this Court, Mr McGuire, argued that Mr Erwood’s failure to file the case on appeal and seek a fixture within the required time limit was a “collateral effect” of the delays in exhausting all possible means of obtaining legal aid.  Mr Erwood was seeking leave to appeal to the High Court against the decision of the Legal Aid Review Panel upholding the refusal of legal aid.  In addition, it was argued that the deteriorating mental health of Mr Erwood, and the death of Mr Erwood’s sister, of which he had not been immediately informed, as well as the vandalising of Mr Erwood’s property, were further reasons for delay. 

[3]       The respondents opposed the granting of an extension.  They argued that Mr Erwood’s ongoing efforts to obtain legal aid, and his failure to pursue the appeal in this Court until all his legal aid appeals had been exhausted, amounted to an abuse of process.  They argued that, in the High Court, Mr Erwood had sought adjournments at every step, which meant this Court could have little confidence that his appeal to the High Court against the decision upholding the refusal of legal aid would be pursued timeously.  They pointed to the evidence that the appellant had substantial savings and thus did not require and was not entitled to legal aid, and highlighted the significant ongoing prejudice to the respondents from the prolongation of the litigation which would prevent the respondents from finalising the estate and selling the house which was the subject of the dispute.

[4]       This Court noted that what Mr Erwood sought was an indulgence, and that the disentitling conduct of Mr Erwood counted against such an indulgence being granted.  The Court noted that the judgment of Wild J had chronicled the repeated applications for adjournment and other disruptive tactics which Mr Erwood had adopted in the High Court, which ultimately led to the High Court hearing the proceeding in his absence. 

Appeal to Supreme Court

[5]       Immediately after the judgment of this Court was issued, Mr Erwood sought leave to appeal to the Supreme Court.  The stay of execution which had been granted by Ronald Young J was extended by a Judge of the Supreme Court, Blanchard J, on 10 May 2007.  The Supreme Court issued a judgment on 31 May 2007 declining leave to appeal.  That Court said that it was well within the discretion of this Court to refuse an extension of time; Mr Erwood’s application had been dealt with by this Court in accordance with well settled principles, and this Court was fully entitled to take the view that there had been disentitling behaviour by Mr Erwood with continuing prejudice to the respondents from the delays he had caused both in the High Court and in this Court.

[6] The Supreme Court also revoked the stay of execution which had been granted by Blanchard J: [2007] NZSC 38.

Judgment not sealed

[7]       It appears that the appellant did not arrange for the judgment of this Court to be sealed, and that step has still not been taken notwithstanding that the application for leave to appeal to the Supreme Court has now been dealt with.  We understand that the respondents attempted to seal the judgment of this Court, but that the judgment has not, as yet, been sealed.

Recall application

[8] On the day after the Supreme Court issued its judgment, Mr Erwood applied to this Court for recall of this Court’s judgment, and also sought a stay of the High Court judgment. He subsequently filed another application for stay, and this has been dealt with in an earlier judgment, [2007] NZCA 236. A stay was refused. Mr Erwood took these steps personally: Mr McGuire has not been involved.

[9]       Under r 51(6) of the Rules, neither the parties nor their representatives have a right to appear before the Court on an application for the recall or reopening of a judgment, but the Court may direct a hearing if it sees fit.  In the present case we have received extensive submissions and a supporting affidavit from Mr Erwood, and two short submissions in opposition from the respondents.  We have not found it necessary to have an oral hearing, and we deal with the matter on the basis of the written material received from the parties.

[10]     Mr Erwood’s application for recall has raised an entirely new matter which had not been raised either in his notice of appeal to this Court or in the course of argument in relation to his application for extension of time to file the case on appeal and seek a fixture.  It appears it was not mentioned in his Supreme Court appeal either, because there is no reference to it in that Court’s judgment.

[11]     Mr Erwood now argues that he did not file the case on appeal and seek a fixture in this Court because he could act only through a litigation guardian.  He argued that he was an incapacitated person, and that a litigation guardian ought to have been appointed by the High Court for the purposes of the High Court proceedings.  He filed an affidavit which exhibited affidavits from other proceedings as well as a letter from a consulting psychologist which supported this contention.  He said that, as no litigation guardian had been appointed, this Court should recall its judgment, and should then order a new trial at which Mr Erwood would be represented by a litigation guardian.  He said that the respondent, Mr Glasgow, was aware of the appellant’s incapacity and should have advised the Court of the need for the appointment of a litigation guardian.

[12]     The respondents strongly oppose the recall of this Court’s judgment.  Their counsel, Mr Downing, submitted that the appellant had applied to the High Court for the appointment of a litigation guardian or other orders “in order to protect the plaintiff as to his mental status and his disability status”.  He said this application had been dealt with on 23 December 2003 by Ellen France J, who had authorised the appointment of an amicus curiae.  He said that, at no time during the High Court process, did Mr Erwood challenge the appointment of the amicus.  He noted that, in this Court, Mr McGuire appeared for Mr Erwood.

[13]     The test for recall of a judgment is set out in the judgment of Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC). In that case Wild CJ said:

There are, I think, three categories of cases in which judgment not perfected may be recalled – first, 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: secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled. 

[14]     That test was adopted by this Court in Rainbow Corporation Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 at 494.

[15]     The only possible applicable ground in this case is that there is a “very special reason” for the judgment to be recalled.  We are satisfied that no such special reason exists in this case.  It is inappropriate for this Court to embark on a complete reconsideration of the basis of a case which was fully argued before it by counsel, where the ground now advanced was not mentioned earlier.  The fact that an application for leave to appeal to the Supreme Court has now been dismissed makes it even more inappropriate.  Mr Erwood’s pursuit of a recall of the judgment on a previously unheralded ground smacks of the kind of disentitling behaviour to which we referred in the judgment which Mr Erwood seeks to have recalled. 

Result

[16]     In the circumstances, we dismiss the application for recall.

Sealing of judgment

[17]     We request that the Registrar now arrange for the judgment of this Court of 30 April 2007 to be sealed.

Solicitors:
McFadden McMeeken Phillips, Nelson for Respondents