Gibson v Dental Council HC Auckland CIV 2010-404-230

[2010] NZHC 1300

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-000230

AND UNDER                 An application to recall the judgment of the

High Court dated 3 June 2010

IN THE MATTER OF     An application to stay the enforcement of the bankruptcy proceedings

BETWEEN  NEVILLE JAMES GIBSON Applicant

ANDDENTAL COUNCIL Respondent

Hearing:         28 June 2010

Appearances: No appearance by Applicant

M L Broad for Respondent

Judgment:      28 June 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:

Kensington Swan, PO Box 10246, Wellington 6143

Copy to:

N J Gibson (Judgment debtor in person), c/o PO Box 7774, Wellesley Street, Auckland. And to: 7/58 Wattle Tree Road, Armadale, Melbourne, Victoria, Australia

N J GIBSON V DENTAL COUNCIL HC AK CIV-2010-404-000230  28 June 2010

[1]      The matter that has come before the Court today is Dr Gibson’s application to recall my decision of 3 June 2010 in which I dismissed his application to set aside the bankruptcy notice that had been issued against him by the Dental Council.

[2]      The matter was set down for 9:00 am on 28 June 2010.  This was confirmed with Dr Gibson in the telephone conference I held on his proceeding when I was sitting in Wellington.  He confirmed that he was available for 9:00 am this morning. He has not in fact appeared.  It is standard practice with Dr Gibson not to appear in Court on time.  He failed to appear on time when the matter was heard before me earlier.

[3]      Rule 7.40 of the High Court Rules says:

1.If a party is neither present nor represented at the hearing of an application the Judge may:

(a)determine  the  application  in  the  party’s  absence  in  any manner that appears just;  or

(b)      adjourn the application; or

(c)      strike out the application.

[4]      The course I propose to take is to determine the application even though Dr Gibson is not present.   In considering his application, I will have regard to his application but I will also have regard to the submissions that have been filed by the Dental Council.

[5]      Dr Gibson advances these grounds in his application for recall:

a)       The  learned  Associate  Judge’s  decision  would  be  unjust  and  a miscarriage of justice to remain as it is;

b)The learned Associate Judge misdirected himself on the judgment debtor’s claim being a challenge to the findings of the High Court Rules and a collateral attack of the judgment of Wylie J delivered in the Blunt  and Fry matters;

c)       The learned Associate Judge misdirected himself on when he found that the Statute of Limitations arose;

d)The judgment debtor will be prejudiced if the judgment is not recalled and could be bankrupted by a judgment creditor who is not entitled to the proceeds of a crime;

e)       The learned Associate Judge was unaware at the time of judgment of relevance statutory provisions or relevant authorities or did not consider them as he demonstrated an apparent bias on the facts;  and

f)        There are errors in the judgment.

[6]      I observe at the outset that I gave the decision after a defended hearing in which Dr Gibson had filed extensive affidavit material and extensive submissions and had used his right of audience to the full.   The matter had originally been allocated a half a day for hearing but in fact took slightly more than one and a half days to be heard.  During that time, counsel for the Dental Council was required to speak for only a very short time with Dr Gibson taking up the bulk of the hearing. He used the opportunity to deploy every conceivable argument that he could to suggest that he had an arguable case which would be an arguable cross claim against his obligation to pay costs under the decision of Wylie J.

[7]      When there has been a full defended hearing, an application for recall is governed by the principles laid down by Wild CJ in Horowhenua County Council v Nash (No. 2) [1968] NZLR 632 at 633. The passage in the decision is well known. The Chief Justice said:

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.

[8]      In his submissions, Mr Broad has directed my attention to further decisions given since Horowhenua County Council which are of relevance.   In Ngahuia Reihana Whanau Trust v Flight CA, Wellington CA23/03, 26 July 2004, Anderson P said:

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 process and to reaffirm the rarity of legal justification for recalling judgments.

[9]      Similarly, Mr Broad cited  to me Faloon v Commissioner of Inland Revenue (2006) NZTC 19,832 (HC), referring to the rarity of cases coming within the third category under the dicta of Wild CJ.   In Erwood v Maxted [2010] NZCA 93 the Court of Appeal reaffirmed Horowhenua as the leading authority on recall of judgments, confirming that its principles still continue to apply.

[10]     Mr Broad has helpfully considered each of Dr Gibson’s alleged grounds of recall under various headings.  The first heading Mr Broad gives is “Unjust”.  Quite simply an argument that the decision sought to be recalled is unjust does not come within  the  Horowhenua  principles.     It  not  unjust  that  the  decision  remains unchanged.  In terms under process, Dr Gibson had a very full and fair hearing in which he had every opportunity to present his case.   In terms of the substantive matters, I was satisfied that there was no merit in the matters Dr Gibson sought to raise against the Dental Council.

[11]     Next  under  the  heading  “Misdirected”,  Dr  Gibson’s  own  claim  was misdirected in the sense that it sought to raise matters which were by any test well out of time under the Limitation Act.   While my decision did not analyse when a cause of action arose for each of the range of matters he raised, it was plain that the only matters that could be within time were the proceedings taken against him under the Dental Act.  Other matters he raised, in particular an incident of breaking into his container, were clearly well out of time.

[12]     Likewise, I was clearly satisfied that what he was trying to do in that part of his proceeding which seemed to be within time was to attack the decisions made

under the Dental Act against him and against the decision of Wylie J.  Quite clearly, any finding in his favour on his cross claim would be inconsistent with the decisions that were made against him under the Dental Act.   That inconsistency would have thrown those earlier decisions into doubt.  Therefore, his cross claim was a collateral attack on those earlier proceedings and his proceeding was properly an abuse of process.

[13]     Under the heading of “Prejudice”, Mr Broad has considered Dr Gibson’s claim that the Dental Council would be benefiting from proceeds of a crime.  The suggestion that an order for costs of the High Court constitutes the proceeds of crime is a novel submission and I note that Dr Gibson has not given any authority to support it.  The submission by Dr Gibson is ludicrous.

[14]     Next, it is suggested that I misinterpreted the law.  If I have misinterpreted the law, or if there are errors in my judgment, the proper course for Dr Gibson to take is to appeal against my decision, not to come back to me and ask for a recall.

[15]     In summary then, the recall application is itself misconceived and should be dismissed.

[16]     On  costs,  Mr  Broad  has  sought  costs  and  he  submits  that  he  should  be awarded costs on the basis of 2.1 days, which includes an uplift of one day for preparation of submissions.  Firstly, Mr Broad did present quality submissions which assisted me in coming to my decision but, more importantly, the basis for the uplift is under r 14.6(3)(a)(ii) and (iii) because Dr Gibson took unnecessary steps to recall and presented arguments that entirely lacked merit and he failed unjustifiably to accept proper legal arguments.  In the case of vexatious applications such as this one, it is proper that the Court should mark its disapproval of unworthy recall applications by ordering an uplift so that the message is sent out clearly that such recall applications are entirely misconceived and should not be taken.  On the basis of 2.1 days, I award the Dental Council costs of $3,780.00.

[17]     I order:

a)        The recall application is dismissed;

b)        Dr Gibson will pay the Dental Council costs of $3,780.00.

R M Bell

Associate Judge