France v The Queen
[2015] NZCA 367
•12 August 2015 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA348/2015 [2015] NZCA 367 |
| BETWEEN | MALCOLM FRANCE |
| AND | THE QUEEN |
| Court: | Wild, Keane and Kós JJ |
Counsel: | Appellant in Person |
Judgment: (On the papers) | 12 August 2015 at 11.30 am |
JUDGMENT OF THE COURT
The application for recall is dismissed.
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REASONS OF THE COURT
(Given by Wild J)
By notice filed on 29 July 2015 Mr France applies to recall the judgment delivered on 30 June 2015.[1] That judgment refused Mr France an extension of time for his application for leave to bring a second appeal.
[1]France v R [2015] NZCA 282.
Mr France’s application contains more of the nonsense referred to in the judgment Mr France seeks to recall. For example, Mr France repeats that he is “not a legal person” and claims to file the application in the capacity “of General Executor of the above-referenced Estate of Mr Malcolm France”.
Putting aside this nonsense, we discern two grounds for recall:
(a)Mr France was not aware of the 30 June 2015 hearing date until 27 June – only three days (and only one working day) before the hearing date.
(b)Contrary to what the judgment held, there is an explanation for Mr France’s seven months delay in seeking an extension of time. The recall application states:
9.The long time it took to appeal is accounted for by Judge Brown and Judge Vennings ultra vires actions. As stated in application (COA). While Judge browns decision turning down the appeal 15 Jul 2015 was simply erromeous. The decision made next on the 10 Sep 2015 was wantonly erroneous and had clerical errors as well and had given the same decision as another matter (CRI-2015-404-000325) that was completely different and should have been separate and different. When asked for clarification and reissue of decision it was made finally and abundantly clear by Judge Venning on the 25 Feb 2015 as attached, no such thing was ever going to be made. This denied Mr France and I any clarification on Judge Browns erroneous decision on the 15 Jul 2015 and the fixing of such errors was never going to be gtten from the High Court. Making it necessary to be taken to the Court of Appeal, which was on the 8 May 2015. Some 6 weeks later and not a great deal past the 25 Feb 2015.
As to the first of these grounds, this Court’s Registry advised Mr France of the hearing date by letter emailed on 22 June and sent a further email on 24 June advising him of the hearing date and the starting time of the hearing. If, as he asserts, Mr France did not become aware of those emails until Saturday 27 June he ought to have advised the Court first thing on Monday 29 June. He did not advise the Court until 4.02 pm on Tuesday 30 June, by which time the hearing was over and the judgment (which was given orally) delivered. Too late.
The second ground for recall is addressed to the first basis on which the Court refused to extend time: that there was no “sensible or adequate explanation for the lengthy delay in applying”.[2] The reference, in paragraph 9 of Mr France’s recall application set out in [3](b) above, to Venning J’s decision of 25 February 2015 is to a minute and direction the Judge gave. In that minute Venning J stated:[3]
[2] In the most recent decision [2014] NZHC 2193 Brown J declined Mr France’s application for leave to appeal to the Court of Appeal
[3] Mr France has subsequent purported to file a number of further documents with the Court styled as:
·“clarification of Judge Brown J judgment and notice of error”;
·“affidavit – notice of motion to quash and claim for damages”; and
·“affidavit of merit – notice of writ of error”.
[4] The papers filed by Mr France are largely incomprehensible land meaningless.
[5] Given Brown J’s decision to decline leave to appeal the two previous decisions in [2014] NZHC 1656 and [2014] NZHC 1657 the only remaining avenue for Mr France was to apply to the Court for leave to appeal.
[6] The Registrar is directed not to accept any more documents from Mr France in this Court relating to these appeals.
[2]At [17].
[3]France v New Zealand Police [2014] NZHC 1656; [2014] NZHC 1657; [2014] NZHC 2193.
If it had not earlier been made clear to Mr France that his remedy was to appeal, then it was made “finally and abundantly clear” (to use Mr France’s own words) in [5] of Venning J’s minute. Yet Mr France did not file his extension of time application for a further two and a half months – not until 12 May 2015.
So, Mr France’s attempt to explain away his seven month delay in applying has in fact reinforced the conclusion in the 30 June judgment that there is no adequate explanation for that delay.
To summarise, no grounds to recall the judgment are made out. There are not here any of the exceptional circumstances which might require the Court, in the interests of justice, to exercise its inherent power to recall its judgment.[4]
[4]R v Smith [2003] NZLR 617 (CA) at [36].
The application to recall is accordingly dismissed.
The Registrar is directed not to receive for filing any further documents from Mr France in relation to this matter. As far as this Court is concerned, it is at an end.
Solicitors:
Crown Law Office, Wellington for Respondent
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