Guo v PricewaterhouseCoopers

[2022] NZHC 1384

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000351 [2022] NZHC 1384

UNDER

The Human Rights Act The Privacy Act

IN THE MATTER

of an appeal in judicial review against a decision from the Human Rights Review Tribunal dismissing application for further discovery against the respondent in [2022] NZHRRT 6

BETWEEN

YAN GUO

Appellant

AND

PRICEWATERHOUSECOOPERS

Respondent

On the papers:	At Auckland
Judgment:	13 June 2022

JUDGMENT OF POWELL J

[Application to recall costs judgment]

This judgment was delivered by me on 13 June 2022 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Bell Gully, Auckland (T L Clarke)

Copy:

Y Guo, Mount Albert

YAN GUO v PRICEWATERHOUSECOOPERS [2022] NZHC 1384 [13 June 2022]

[1]    Yan Guo has applied to recall my judgment of 19 May 2022 in which I awarded costs to the respondent, PricewaterhouseCoopers (“PWC”), after she withdrew an appeal brought against a decision of the Human Rights Review Tribunal (“the costs judgment”).1

[2]    It is settled law that a judgment can only be recalled in very limited circumstances, set out in Horowhenua County v Nash (No. 2):2

[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 authoritive decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[3]    None of those circumstances apply in this case. Ms Guo has made a number of complaints about the judgment and in particular appears to argue that it was wrong for me to strike out her appeal on the application of PWC, as it was not ‘an appeal in fact’ but an ‘appeal in judicial review’, and otherwise contends that she did not apply to withdraw her appeal.

[4]    With respect to Ms Guo, none of these matters provide a basis for recall of the costs judgment.

[5]    First, the costs judgment dealt with the costs issues following the withdrawal of her appeal on 26 April 2022. The withdrawal occurred when her appeal was called in the Appeals list on 26 April 2022 and was recorded in a Minute of the same date. That Minute records that in response to the PWC application to strike out Ms Guo’s appeal:

Immediately before the conference Ms Guo filed a document seeking permission to amend the appeal so as to permit judicial review of the Tribunal’s decision. Accordingly when the matter was called this morning I sought clarification from Ms Guo as to whether she accepted that there was no basis for an appeal of the Tribunal’s decision in question but rather that what she now wanted to do was to seek judicial review of that decision. Following discussion, including a subsequent discussion of whether Ms Guo could withdraw the appeal on the basis that no costs would be awarded (to which I advised she could not impose such a condition), Ms Guo confirmed

1      Guo v PricewaterhouseCoopers [2022] NZHC 1117.

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

that this was indeed the case and ultimately has accepted that it is appropriate for her appeal to be withdrawn. The appeal is withdrawn accordingly.

[6]    At the conference I endeavoured to explain the difference between an appeal and a judicial review, and that if Ms Guo wanted to seek judicial review new proceedings would be required.

[7]    It follows that the issues raised by Ms Guo in her application to recall are irrelevant to the costs judgment. Instead, the costs judgment dealt with whether or not costs should have been awarded on the withdrawn appeal.

[8]    Given this position Ms Guo’s application to recall is dismissed. As it was not necessary to seek the view of PWC no issue of costs arises on the recall application.

Powell J