Henry v Secretary for Justice

[2013] NZHC 171

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-7448 [2013] NZHC 171

BETWEEN  COLIN SAMUEL HENRY Plaintiff

ANDTHE SECRETARY FOR JUSTICE First Defendant

ANDTHE ATTORNEY-GENERAL Second Defendant

Hearing:         (On the papers) Counsel:  Plaintiff in person Judgment:    12 February 2013

JUDGMENT (NO.2) OF BREWER J

COPIES TO:

CS Henry (Auckland) in person

Gordon Sulliman, Team Leader, High Court, Auckland

HENRY V THE SECRETARY FOR JUSTICE HC AK CIV-2012-404-7448 [12 February 2013]

[1]      By judgment dated 12 December 2012, I declined the plaintiff’s application for review of the Registrar’s decision declining his application for a waiver of Court fees.[1]   The proceeding which the plaintiff wished to commence would claim that the Secretary for Justice breached the terms of a deed between the plaintiff and the Legal Services agency.

[1] Henry v The Attorney-General HC Auckland [2012] NZHC 3360.

[2]      The plaintiff, by memorandum dated 19 December 2012, asks that I recall the judgment.  The thrust of the memorandum is that I misunderstood the gravamen of the intended proceeding.  The relevant part of my judgment is:

[14]      I  do  not  accept  that  the  proceeding  is  intended  to  determine  a question of law that is of significant interest to the public or a substantial section of the public.  The Legal Services Act 2011 makes it clear that the Ministry of Justice inherits the liabilities of the Agency.  If the proceeding were to go ahead it would focus on the proper construction of the Deed and the actions taken by the parties to comply with their obligations under it. The outcome would be of personal interest to the plaintiff.  It might also be of interest to any other lawyers who have settlement agreements with the Agency not yet fulfilled.  But that interest would be in the construction of the Deed, not whether the Deed is binding on the defendants.

[Footnotes omitted]

[3]      In his memorandum, the plaintiff submits that the issue is:

... rather whether or not the Ministry of Justice is obliged to honour the terms of deeds entered into by its predecessor, the Legal Services Agency (whatever those terms are).

[4]      The plaintiff submits that:

... Such a question is self-evidently one that is public, relating as it does to what are the obligations of a Ministry that has taken over an agency’s contractual obligations, when the enabling statute renders the Ministry liable for that agency’s “liabilities”.

[5]      In support of his application for recall, the plaintiff has provided a copy of a letter written on behalf of the Ministry of Justice and dated 13 August 2012.  It sets out the view that:

the Deed of Settlement between you and the Agency does not allow the Secretary for Justice (Secretary) to override the requirements of the Act  and  the  Legal  Services  (Quality Assurance)  Regulations

2011; and

the Ministry is not legally obliged to permit you to continue as a lead provider  in  refugee  matters  under  the  terms  of  the  Deed  of Settlement.

[6]      My power to recall the judgment is set out in r 11.9 of the High Court Rules. On its face, the power is unfettered until a formal record of the judgment has been drawn up and sealed.  However, the common law makes it plain that a judgment can be recalled only where it fits within one of three categories of cases.[2]   The category which might fit this case is:[3]

Where for some other very special reason justice requires that the judgment be recalled.

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

[3] Ibid, at 633.

[7]      In this case, my judgment was based on the clear statutory provision that the Ministry  of  Justice  inherits  the  liabilities  of  the  Legal  Services  Agency.    The question of law put forward by the plaintiff is aimed at whether the terms of the deed entered into by the Legal Services Agency with the plaintiff must now be honoured by the Ministry of Justice.

[8]      The plaintiff’s proposed statement of claim pleads breach of the deed.

[9]      I accept that [14] of my judgment, quoted above, might put the issue more narrowly than the plaintiff would.  But that is not ground for recall.  The proceeding would be about the obligations of the parties under the deed.  No doubt part of the argument would relate to the proper construction of the applicable legislation.  The pool of interested parties would be the one I identified.

[10]     I  see  no  very special  reason  by  which  justice  requires  the  judgment  be

recalled.  I decline to do so.

Brewer J