Gibson v New Zealand Land Search and Rescue Dogs Incorporated

[2012] NZHC 2477

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-000913 [2012] NZHC 2477

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF     an application for judicial review

BETWEEN  ROBERT GIBSON Plaintiff

ANDNEW ZEALAND LAND SEARCH AND RESCUE DOGS INCORPORATED Defendant

Judgment (on the papers):      26 September 2012

JUDGMENT OF COLLINS J [Application for Recall of Judgment]

Introduction

[1]      This case was heard by me on 21 and 22 May 2012.   At the end of the hearing, after I had heard all witnesses and submissions I invited the parties to give serious consideration to resolving their dispute.  In making the suggestion I:

(1)       emphasised that I was willing to give judgment;

(2)pointed out that I was concerned that no meaningful attempt to settle the dispute appeared to have been made;

(3)suggested to counsel what  I considered to be a sensible solution, namely:

(a)        that the defendant revoke its decision expelling Mr Gibson;

GIBSON V NEW ZEALAND LAND SEARCH AND RESCUE DOGS INCORPORATED HC WN CIV-2011-

485-000913 [26 September 2012]

(b)        that Mr Gibson would resign from the defendant;  and

(c)        that the parties bear their own costs.

To assist the parties I told counsel that if I were to deliver judgment I would have to uphold the application for judicial review and that costs would be awarded to the plaintiff.

[2]      Counsel thought at that stage that there was a realistic prospect of settlement being achieved.  I therefore deferred issuing judgment until 12 June 2012.  By that time I had been advised that settlement was not possible.

[3]      At paragraph [64] of my judgment of 12 June 2012 I dealt with the issue of costs in the following way:

Although the plaintiff is not entitled to damages, he is entitled to an award of costs on a scale 2B basis.  Leave is reserved to the parties to return to the Court if any issue in relation to costs is not able to be resolved.

Application for recall

[4]      The defendant submits that this is one of those rare instances in which I should recall my judgment pursuant to r 11.9 of the High Court Rules.  The plaintiff relies  on  the  well  known  statement  of  the  High  Court’s  jurisdiction  to  recall judgments in Horowhenua County v Nash (No 2),[1] in which Wild CJ identified three grounds for recall:

[1] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).

(1)      where post the hearing there has been an amendment to legislation or

regulations or a new decision of “high authority” that is relevant;

(2)where counsel have failed to draw the Court’s attention to “plainly relevant” legislation or decisions;  and

(3)“where for some other very special reason justice requires that the judgment be recalled”.

[5]      The principles governing the recall of the judgment have been explained by the Court of Appeal in Unison Networks Ltd v Commerce Commission[2] and Erwood v Maxted[3] in which their Honours explain:

[2] Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

[3] Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466.

(1)       Recall is not a substitute for an appeal;

(2)       Recall cannot be used to challenge substantive findings;

(3)Recall cannot be used to recast arguments previously made or to advance arguments that could have been made that were not advanced previously.

Could the parties have made submissions on costs in this case?

[6]      When distilled to its most basic point the defendant says that I should recall my decision awarding the plaintiff’s costs on a scale 2B basis because the defendant believes it was not afforded an opportunity to make submissions on costs.

[7]      In fact, the defendant was clearly told after the hearing on 22 May 2012 that I would award costs in favour of the plaintiff if the litigation was not settled.  It is true, however, that I did not receive submissions on costs or on the scale of costs that I should consider awarding.   Nevertheless, I am in no doubt that both parties had every opportunity to file any submissions that they wanted on the question of costs. In the absence of any submissions I awarded costs on a scale 2B basis based upon my assessment that this was an appropriate scale in the circumstances of this case.

Was I wrong to award costs on a scale 2B basis?

[8]      The defendant says there are five reasons why a scale 2B award of costs was

not appropriate in this case.  I will address each of the defendant’s arguments:

(1)That  the  plaintiff  was  substantially  the  author  of  his  own  legal difficulties

I cannot and will not revisit my earlier findings of fact.  They speak for themselves.  Suffice it to say that judgment was awarded in favour of the plaintiff because of the defendant’s failure to adhere to principles of natural justice.

(2)       The public has an interest in whether the defendant pays costs

In delivering judgment, and including my award as to costs, I was

very aware of the public nature of the defendant’s activities.

(3)       That a 2B costs award imposes a form of damages

Again, I will not revisit my substantive judgment.   Suffice to say damages were not awarded to the plaintiff and costs were not seen as being a substitute for damages.

(4)       That judicial review justifies a more generous approach to costs

Suffice it to say I was fully aware of the nature of the proceeding.

(5)       The plaintiff ’s claim for costs is not consistent with his claims for

reinstatement

With respect, this submission does appear to involve some form of conflation of a costs award with the potential consequences of enforcement of the award.

What are the consequences for the defendant?

[9]      In delivering my judgment I was fully aware that the defendant is a voluntary organisation and that it was likely to face significant financial challenges as a result of the litigation and the judgment that I was delivering.

Analysis

[10]     I have carefully considered whether or not this is an instance in which I should recall my judgment awarding costs on a scale 2B basis in favour of the plaintiff.  Notwithstanding the pleas on behalf of the defendant, I do not believe this is an instance in which I should revisit this issue.

[11]     There  is  nothing  within  the  defendant’s  submissions  which  cause  me  to conclude that an injustice has been caused through my awarding the plaintiff costs on a scale 2B basis.

Result

[12]     The application for recall is dismissed.

[13]     The parties have five working days in which to file any memoranda they wish in relation to costs in relation to the recall application.

D B Collins J

Solicitors:

Alan Heward, City Legal, Nelson for Plaintiff

Chapman Tripp, Auckland for Defendant