Erwood v Maxted
[2010] NZCA 93
•25 March 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA567/2007
CA631/2007
[2010] NZCA 93
BETWEENROBERT ERWOOD
Appellant
ANDJANET MAXTED AND ALEXANDER JAMES JEREMY GLASGOW AS TRUSTEES OF THE ESTATE OF EDWARD ERWOOD
First RespondentsANDTHE OFFICIAL ASSIGNEE
Second Respondent
CA485/2007
CA731/2009
AND BETWEEN ROBERT ERWOOD
AppellantANDRAYLEE PATRICIA HARLEY
Respondent
Court:Arnold, Randerson and Allan JJ
Counsel:Appellant in person
P D McKenzie QC as amicus curiae
C R Carruthers QC for Respondent
Judgment
(On the papers): 25 March 2010 at 3 p.m.
JUDGMENT OF THE COURT
AThe application to recall the judgment of this Court of 18 November 2009 under CA567/2007 and CA631/2007 is dismissed.
BThe application for extension of time to file an appeal in CA485/2007 against the costs judgment of Ronald Young J is dismissed and that appeal is now at an end.
CThe directions as to costs memoranda are made in terms of [22] of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Background
[1] In our judgment of 18 November 2009[1] we:
(a)Declined Mr Erwood’s application to recall the judgment of this Court delivered on 19 March 2008[2] fixing security for costs in relation to his appeals CA567/07 and CA631/07;
(b)Granted Mr Erwood leave to appeal against the costs award given on 31 October 2007 in proceedings before Ronald Young J[3] but subject to strict conditions set out in [47] of our decision including the filing of an appeal and the payment of security for costs by 25 November 2009;
(c)Reserved costs on the application in (b); and
(d)Ordered Mr Erwood to pay costs to Mrs R P Harley on the recall application (as for a standard appeal on a Band A basis plus usual disbursements).
[1] Erwood v Maxted [2009] NZCA 542.
[2] Erwood v Maxted [2008] NZCA 74.
[3] Erwood v Harley HC Wellington CIV-2000-485-27.
[2] Since delivery of the judgment of 18 November 2009, we have received:
(a)A memorandum from Mr McKenzie QC dated 24 November 2009 (received on 25 November 2009) seeking an extension of time for bringing the appeal for which leave was granted until Monday 30 November 2009. This memorandum also raised an issue about a disbursement incurred by Mr Erwood which he seeks to recover in the appeal against the decision of Ronald Young J on costs.
(b)A further memorandum from Mr McKenzie dated 3 December 2009 seeking a recall of the judgment of 18 November 2009 on the ground of error of fact.
(c)A memorandum from Mr Erwood himself received on 30 November 2009 raising a series of matters and seeking a recall of the judgment of 18 November 2009.
(d)A further memorandum from Mr Erwood dated 8 December 2009 seeking a reduction to $3,100 of the amount required to be paid for security for costs in relation to the costs appeal.
(e)Three memoranda from Mr Carruthers QC (as counsel for Mrs Harley) dated 9 December 2009:
(i)disputing a submission by Mr McKenzie that there was no jurisdiction to award costs in favour of Mrs Harley (a non-party);
(ii)submitting that the conditions of the grant of leave to appeal the costs decision of Ronald Young J had not been met; and
(iii)seeking costs in relation to three earlier hearings in relation to the recall of this Court’s judgment of 19 March 2008, and the determination of costs on the application for leave to appeal the costs order of Ronald Young J.
(f)A further memorandum from Mr Carruthers dated 14 December 2009 responding to Mr McKenzie’s memorandum of 3 December 2009 and Mr Erwood’s of 30 November 2009 seeking a recall of the judgment of 28 November 2009.
(g)Two further memoranda dated 23 December 2009 from Mr McKenzie responding to the memoranda from Mr Carruthers:.
(h)Two further memoranda dated 23 December 2009 from Mr Erwood addressing the recall application and the payment of security for costs ordered in respect of the costs appeal.
(i)Four further memoranda from Mr Erwood (dated by reference to their receipt):
(i)24 January 2010 – supporting the recall application;
(ii)18 January 2010 – responding to Mr Carruthers’ memorandum as to alleged non-compliance with the conditions imposed on the grant of leave for the costs appeal;
(iii)22 January 2010 – responding to Mr Carruthers’ memorandum seeking further costs; and
(iv)5 February 2010 – described as an “Interim Memorandum” and “In Reply” raising further alleged errors in this Court’s judgment of 17 March 2008 which are said to justify its recall.
Preliminary Observations
[3] We are obliged to say that the filing of most of these memoranda by Mr Erwood is an abuse of process. His constant efforts seeking to revisit determinations of this Court are not acceptable. The grounds upon which a judgment may be recalled are strictly limited. The leading statement in New Zealand as to recall of judgments is that of Wild CJ in Horowhenua County v Nash(No 2)[4]:
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a 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.
[4] Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC).
[4] That statement was most recently re-affirmed by the Court of Appeal in Unison Networks Ltd v Commerce Commission.[5] In Ngahuia Reihana Whanau Trust v Flight,[6] Anderson P said at [3]:
It is becoming a matter of concern not just to this Court but to others in the western common law system that disaffected litigants, usually appearing in person, repeatedly make application for recall of judgments which they steadfastly refuse to accept. It is timely to characterise plainly unmeritorious applications of that sort as an abuse of the Court’s process and to reaffirm the rarity of legal justification for recalling judgments.
[5] Unison Networks Limited v Commerce Commission [2007] NZCA 49 at [10].
[6] Ngahuia Reihana Whanau Trust v Flight CA23/03 26 July 2004.
[5] Similarly in Faloon v Commissioner of Inland Revenue, at [13]:[7]
While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.
[7] Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC).
The issues in CA567/07 and CA631/97
[6] It must be appreciated that Mr Erwood is seeking the recall of our decision declining to recall the decision of this Court given on 19 March 2008. In his second memorandum of 3 December 2009, Mr McKenzie drew attention to a transcript of the hearing before this Court on 17 March 2008 which preceded the judgment of 19 March 2008. The transcript did not become available until after our judgment of 18 November 2009. It is clear from this transcript that, during the course of argument, there was discussion between a member of the Court and Mr Soondram who was representing Mr Erwood at that hearing. The possibility of security for costs being fixed in relation to CA631/07 on the same basis as the amount awarded in CA567/07 (ie the sum of $4,740) was canvassed with counsel and Mr Soondram indicated that his client would agree to pay that sum in respect of both appeals. However, it is also evident that the discussion between members of the Court and counsel moved on from that point and the issue did not rest with the preceding discussion. In particular, the President of the Court made it clear to Mr Soondram that “You’ve still got a lot of work to persuade me why both sets of appeals just shouldn’t be struck out because Mr Erwood’s been trifling with the system.” Counsel for the respondents reiterated, towards the end of the hearing, that he still sought an order striking out the appeals.
[7] We accepted in our judgment of 18 November 2009 at [28] that it was possible that the figure of $20,000 for security for costs in respect of CA631/07 was not discussed at the hearing. It is now clear there was no such discussion. However, we do not see any basis for departing from the view we expressed at [28] and [29] of our judgment that the amount fixed for security for costs was within the discretion of the Court and that there was no injustice to Mr Erwood in the circumstances.
[8] Many of the matters raised by Mr Erwood in his various memoranda cover issues already canvassed at the hearing before us. None affords any basis to reconsider the orders made.
The issues in relation to the appeal of the costs decision of Ronald Young J (CA485/2007)
[9] The extension of time to file a notice of appeal was sought by Mr McKenzie’s memorandum of 24 November 2009. This was received one day before the expiry of the seven day period allowed for that purpose (ie by 25 November 2009). Mr Erwood’s application to have the amount of security costs reduced came well after the expiry of that time limit. Mr Erwood filed the notice of appeal on 25 November 2009 as ordered in [47] of our judgment of 18 November 2009. But he did not pay the security for costs until 26 November 2009. He did so with a cheque from the Official Assignee dated 25 November 2009.
[10] In a memorandum provided to this Court, Mr Erwood maintains that he was told by Court staff that he had until 27 November 2009 to pay the security for costs (on the footing that weekends were not counted). We have checked this claim with relevant Court staff. The team leader with responsibility for Mr Erwood’s matters says that no such statement was made by her. Rather, she informed Mr Erwood on the date he made the payment for security for costs that it was due the day before (25 November). Another staff member named by Mr Erwood on this issue recalls a discussion with him in which the staff member was asked to advise (without any context being given) when a seven day period from a specific date would expire. She has no recollection of mentioning that “weekends were not counted”.
[11] We are not persuaded that there is any unfairness to Mr Erwood arising from anything which may have been said, out of context, by Court staff to him about the relevant time limits. The judgment is explicit in requiring security to be paid within seven days of the date of the judgment. If Mr Erwood had any doubts, he ought to have taken advice from Mr McKenzie whose appointment as amicus was extended to assist him as we mention below.
[12] In his memorandum of 24 November 2009, Mr McKenzie informed the Court that he was in discussions with Mr Carruthers QC exploring the possibility of resolving the issues arising in relation to the costs award of Ronald Young J. He sought an extension of time for bringing the appeal until Monday 30 November 2009. In his response, Mr Carruthers QC for Mrs Harley advised the Court that there had been discussions between counsel earlier on 24 November 2009 but he made it clear to Mr McKenzie that, pending receipt of his instructions from Mrs Harley, he (Mr Carruthers) was not agreeing to suspend or waive the conditions in the judgment of 18 November 2009. No agreement has apparently been reached between counsel.
[13] A party granted the indulgence of leave to appeal must comply strictly with the terms upon which leave is granted and will not ordinarily be excused by the mere filing of a memorandum seeking additional time, particularly if it is not suggested there was an inability to comply with the conditions within the time specified.
[14] We are unable to discern any basis to depart from the conditions which we imposed upon the grant of leave in our judgment of 18 November 2009. We made it clear in our judgment that leave to appeal was granted “strictly” on the specified terms and conditions. There is no suggestion that Mr Erwood was unable to file the appeal or to give the security ordered within the time specified. We record that at [50] of our judgment, we extended Mr McKenzie’s appointment as amicus to include providing assistance to Mr Erwood in meeting the conditions upon which leave was granted and for the substantive hearing. Mr Erwood’s obligation in the circumstances was to comply strictly with the terms upon which leave was granted. His failure to do so with no reasonable excuse means this matter is at an end.
[15] Strictly speaking, it is unnecessary for us to deal with a point raised by Mr McKenzie in his memorandum of 24 November 2009 relating to a disbursement Mr Erwood claimed, namely the fee of Mr Comesky which was said to have been incurred by Mr Erwood in respect of Mrs Harley’s application for security for costs. This fee was mentioned at [45] of our judgment and dealt with at [46]. Mr McKenzie submitted that our decision was per incuriam in that we had overlooked authorities for the proposition that disbursements may be awarded to an unrepresented litigant in respect of legal advice obtained for the purposes of litigation.
[16] We did not overlook those authorities which were cited to us by Mr McKenzie. Although we did not say so specifically in [46], we were not willing to grant leave to appeal in respect of that sum. The amount claimed by Mr McKenzie ($14,343.75) was grossly excessive for what was required; Mr Erwood had no need of such advice, being familiar with the principles relating to security for costs; the award of disbursements of this kind to an unrepresented litigant is discretionary; and the Official Assignee had not given Mr Erwood permission to proceed with the matters in respect of which costs were awarded.
[17] It is not strictly necessary for us to deal with Mr Erwood’s plea that the amount ordered for security for costs in the sum of $4,000 should be reduced to $3,100, apparently on the basis that we did not take into account the filing fee of $900. That request has no merit in any event. It is yet another attempt by Mr Erwood to avoid complying with the orders of this Court.
Costs issues
[18] It has been submitted, on behalf of Mr Erwood, that this Court does not have jurisdiction to make an award of costs in favour of Mrs Harley who we permitted to appear and make submissions through counsel. Mrs Harley is the principal creditor in Mr Erwood’s bankrupt estate. She is directly affected by Mr Erwood’s attempts to have his adjudication set aside. We have no doubt that this Court possesses jurisdiction to make such an order in respect of a non-party under the broad discretion conferred by r 53 of the Court of Appeal (Civil) Rules 2005 to make any orders as to costs that seem just. There is ample authority in New Zealand and elsewhere for the proposition that a broadly-based costs discretion may be exercised against non-parties to civil litigation.[8] Although these cases have dealt with awards of costs against a non-party, we see no reason in principle why a non-party, in circumstances such as those applicable here, should not be entitled to an award of costs in their favour.
[8]Carborundum Abrasives Ltd v Bank of New Zealand (No 2) [1992] 3 NZLR 757 (HC) at 763 applying Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965 (HL). See also Knight v FP Special Assets Ltd (1992) 174 CLR 178 (HCA).
[19] We note too that r 53E(3)(d) empowers the Court to order indemnity costs in favour of a non-party who has acted reasonably. On the principle that the greater includes the lesser, this rule supports our conclusion that this Court has jurisdiction to award scale costs to a non-party.
[20] Mr Carruthers has raised two costs issues on behalf of Mrs Harley. First, he seeks an order for costs on a standard appeal on a band A basis plus usual disbursements against Mr Erwood in respect of three earlier hearings in respect of the application for recall of the judgment of 19 March 2008 being appearances on 23 April 2008, 9 September 2008 and 17 February 2009 (in addition to the substantive hearing of the application on 19 October 2009). He also seeks costs on the application for leave to appeal the costs judgment. The three previous appearances in connection with the recall application would ordinarily be covered by step 11 in the time allocations in the Rules. However, it would be helpful if Mr Carruthers could file and serve a brief memorandum as to the nature of the previous hearings and the times involved in each.
[21] As to the application for leave to appeal the costs order, our present inclination is not to make any additional costs award on the footing that the costs awarded on the application for recall should be treated as covering all matters. If Mr Carruthers seeks an additional award, a memorandum should be filed accordingly.
[22] Any further memorandum on cost issues by Mr Carruthers is to be filed and served within seven working days after the date of this judgment. Mr Erwood is to respond by filing and serving any memorandum within seven working days after the expiry of the period allowed to Mr Carruthers.
Guidelines for recall of judgments in civil proceedings[9]
[9] Applications for recall in criminal cases are not covered by these Guidelines.
[23] This Court is concerned with the proliferation of unjustified applications to recall judgments and has agreed upon the following guidelines to deal with such applications.
(a) Accidental slips or omissions
(i) Any accidental slip or omission may be corrected under r 8 of the Court of Appeal (Civil) Rules 2005.
(ii) Where the parties are agreed that an error or omission which falls within r 8 should be remedied, a joint memorandum may be filed for consideration by the Court.
(iii) Where there is no agreement, or where the Court directs, a formal application is required in accordance with the process set out in (c) below.
(b) Applications to recall judgments not falling within r 8
(i) Where a party seeks to recall a judgment not falling within r 8, the criteria set out in Horowhenua County v Nash (No 2)[1968] NZLR 632 at p 633 (as confirmed by this Court in Unison Networks Limited v Commerce Commission [2007] NZCA 49) are to be followed and will be strictly applied.
(ii) Applications which merely seek to relitigate matters already considered, or to challenge substantive findings of fact and law, will not be entertained. Reference may usefully be made to Ngahuia Reihana Whanau Trust v Flight CA23/02 26 July 2004; and Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832.
(c) Process
(i) Where a formal application is required in terms of these guidelines:
(a) it must be made on notice to all other parties;
(b)any party served with an application need not respond unless directed to do so by the Court;
(c)the Court will deal with the application on the papers or by oral hearing in terms of r 51(6);
(d)the Court will usually give only brief reasons for its decision on any application;
(e)any further application seeking to recall a decision refusing an application to recall will usually be dealt with summarily; and
(f)the Court will consider ordering increased or indemnity costs against parties and/or counsel bringing unmeritorious applications.
Result
[24] The application to recall the judgment of this Court of 18 November 2009 in CA567/2007 and CA631/2007 is dismissed.
[25] The application for an extension of time to file an appeal in CA485/2007 against the costs judgment of Ronald Young J is dismissed and that appeal is now at an end.
[26] The directions as to costs memoranda are made in terms of [22] of this judgment.
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