Faloon v Planning Tribunal at Wellington

[2020] NZCA 361

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA604/2018
 [2020] NZCA 361

BETWEEN

CLARENCE JOHN FALOON Appellant

AND

THE PLANNING TRIBUNAL AT WELLINGTON First Respondent THE ATTORNEY-GENERAL SUED ON BEHALF OF PALMERSTON NORTH JOINT VENTURE AIRPORT Second Respondent THE ATTORNEY-GENERAL SUED ON BEHALF OF MINISTER OF LANDS Third Respondent THE CLERK OF THE EXECUTIVE COUNCIL Fourth Respondent THE HIGH COURT OF NEW ZEALAND (TAURANGA REGISTRY) Fifth Respondent THE ATTORNEY-GENERAL SUED ON BEHALF OF THE COMMISSIONER OF INLAND REVENUE Sixth Respondent

Court:	Kós P, Clifford and Courtney JJ
Counsel:	Appellant in person V McCall and A P Lawson for Third, Fourth and Sixth Respondents
Judgment: (On the papers)	24 August 2020 at 3 pm

JUDGMENT OF THE COURT

The application for recall is declined. 

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. Mr Faloon applies for recall of this Court’s judgment in Faloon v Planning Tribunal at Wellington.[1]  In it we dismissed Mr Faloon’s appeal against a decision of Dobson J in the High Court at Palmerston North striking out his statement of claim and making a limited restraint order under s 166 of the Senior Courts Act 2016 restricting Mr Faloon or any agent purporting to act on his behalf from commencing any civil proceeding which relates in any way to his adjudication as a bankrupt, or to claimed interests in, or rights arising from, former ownership of land adjoining Palmerston North Airport by Trade Lines Ltd, this order to have effect for a period of five years.[2] 

   [1]Faloon v Planning Tribunal at Wellington [2020] NZCA 170 [Court of Appeal judgment]. Mr Faloon also seeks to recall two interlocutory applications dated 10 September 2019 and 4 December 2019, declined at [27] of the Court of Appeal judgment.

   [2]Faloon v Planning Tribunal [2018] NZHC 2420 [High Court judgment] at [17] and [24]–[25].

2. Mr Faloon now seeks to recall the judgment of this Court, raising 15 grounds in his application.  Some of these grounds are procedural — relating to alleged non‑compliance with r 51 of the Court of Appeal (Civil) Rules 2005, in respect of the subject matter of the judgment, the parties to the judgment, the annexure of a table of cases involving Mr Faloon to the judgment and the sending of the judgment to counsel for Palmerston North Airport Ltd, a non-party to the appeal.  Other grounds are substantive — including reliance on inadmissible evidence (by reason of the Evidence Act 2006 and the Parliamentary Privilege Act 2014), use of the term “invalid delegation”,[3] a claim for judicial review in relation to the divestment of the Palmerston North land, a failure to determine Mr Faloon’s rights as a mortgagee, the potential operation of s 51 of the Public Works Act 1981 as a statutory estoppel in relation to the divestment of the Palmerston North land, lack of protection to the parties at law, failure to rehear the appeal in TCP11/1987,[4] the Attorney-General’s omission of relevant authorities and erroneous references to the “Faloon family”.

   [3]Court of Appeal judgment, above n 1, at [20].

   [4]Referred to in Faloon v Palmerston North Airport Ltd [2012] NZEnvC 105 at [11].

3. Mr Faloon also seeks an award of costs against the fourth respondent.  He does not appear to provide any reasons for such an order to be made.

Discussion

1. The test for recall in the civil context is well-established, following Horowhenua County v Nash (No 2):[5]

   [F]irst, 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.

   [5]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633. See also Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2]; and Craig v Williams [2019] NZSC 60 at [10].

2. Applying this test to the present case, Mr Faloon has not identified any amendments to relevant statutes or regulations, new decisions of relevance and “high authority”; nor a failure to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance.  The authorities which Mr Faloon suggests respondent counsel did not have regard to were in large part included in his own submissions on appeal, and in any case were not relevant to the issues determined by this Court.  The principles in r 51 apply to the formal judgment, but not to the reasons for judgment delivered by the Court.[6]  The table attached to the judgment formed part of the judgment and is not extraneous.  The transmission of a copy of the judgment to counsel for a non-party was an error without consequence.  Finally, there is nothing in the grounds for recall identified by Mr Faloon that suggests for some other very special reason justice requires that the judgment be recalled. 

   [6]Court of Appeal (Civil) Rules 2005, r 51.

3. The application to recall, engaging again in the relitigation of matters finally determined elsewhere, is itself vexatious.  It will be declined.

4. Finally, there is no possible basis for Mr Faloon to be awarded costs.  His appeal was wholly unsuccessful and the Court determined that costs would lie where they fell, in large part because counsel for those respondents who appeared on the appeal did not seek them.  Nor do they seek them on this application.  But for that costs would have been awarded against him.

Result

1. The application for recall is declined.

Solicitors:
Crown Law Office, Wellington for Third, Fourth and Sixth Respondents