Foote v Police

[2023] NZHC 108

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-9

[2023] NZHC 108

BETWEEN

TONY CHARLES FOOTE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Counsel:	E Dyche for the Appellant D Jones for the Respondent
Judgment:	9 February 2023

JUDGMENT OF GORDON J

[Recall of costs judgment]

This judgment was delivered by me

on 9 February 2023 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

E Dyche, Pawson Law Ltd, Te Puke D Jones, Crown Law, Wellington

FOOTE v NEW ZEALAND POLICE [2023] NZHC 108 [9 February 2023]

[1]This is a judgment on a joint application for recall of a costs judgment.

[2]        On 14 July 2022 I gave judgment dismissing an appeal on a question of law brought against a judgment of a District Court Judge by the appellant Tony Foote concerning a firearms licence held by Mr Foote.1

[3]        The respondent applied for costs. On 19 August 2022 I issued a costs judgment in favour of the respondent.2

[4]        The appellant subsequently appealed my substantive judgment to the Court of Appeal. By joint memorandum the parties advise this Court that they have now reached an out of court settlement on the basis of which the appellant has abandoned his appeal to the Court of Appeal.

[5]        Counsel advise that as part of that settlement the parties have agreed that the costs of the High Court proceeding should lie where they fall. The respondent will not seek to enforce the costs judgment which was never sealed. Accordingly, the parties invite the Court to recall the costs judgment under r 11.9 of the High Court Rules 2016.

[6]        As counsel note, the power to recall a judgment prior to sealing should be exercised sparingly and in those rare cases where it is clearly justified. In all the circumstances I accept that this is a case that falls within the category of cases where, for a very special reason3 prompt justice and good administration requires that the judgment be recalled:

(a)A judgment obtained by consent, even after it is sealed, may be reopened (under the inherent jurisdiction of the Court).4 In this case, the appellant initially agreed with the quantum of costs sought and ordered;

1      Foote v New Zealand Police [2022] NZHC 1670.

2      Foote v New Zealand Police [2022] NZHC 2060.

3      Horowhenua v Nash (No. 2) [1968] NZLR 632 (SC) at 633.

4      Herron v Wallace [2016] NZHC 2426, (2016) 23 PRNZ 620 at [33].

(b)An order for recall will enable the litigation to be at an end. Although there exists an extant judgment the respondent does not intend to enforce it.

[7]        The costs judgment in Foote v New Zealand Police5 is recalled under r 11.9 of the High Court Rules.

Gordon J

5      At n 2 above.