Hill v Maori Trustee

Case [2019] NZCA 600

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
 CA622/2017
 [2019] NZCA 600
BETWEEN

FREDRICK HILL
Applicant

AND

MĀORI TRUSTEE
Respondent
Court:

French, Miller and Brown JJ

Counsel:

Applicant in person
C M Reuhman for Respondent

Judgment:
(On the papers)

29 November 2019 at 10.00 am

JUDGMENT OF THE COURT

A      Leave to accept Mr Hill’s recall application for filing is granted.

B      The recall application is dismissed. 

C      No further recall applications may be filed in this proceeding.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

  1. This judgment addresses Mr Hill’s application for recall of this Court’s judgment of 24 June 2019 striking out his appeal for non-payment of security.[1]  It is his second recall application.  His first was dismissed in a judgment delivered on 22 August 2019.[2]  The Court found the application wholly without merit and ordered that the Registrar not receive any further recall applications for filing without leave of a Judge. 

  2. The second recall application was actually filed before judgment had been delivered on the first recall application.  Mr Hill filed it because the Supreme Court had dismissed his application for leave to appeal from this Court’s judgment striking out his appeal.[3]  He was advised that his second recall application might be treated as an application for leave to file the application. 

  3. Rule 8A of the Court of Appeal (Civil) Rules 2005 provides:

    8A      Recalling or reopening judgment

    (1)The Court may, on an interlocutory application or on its own initiative, recall or reopen a judgment given in writing or orally, at any time before a formal record of it is drawn up and sealed.

    (2)Neither the parties nor their representatives have a right to appear before the Court on an application for a judgment to be recalled or reopened, unless the Court otherwise directs.

  4. We accept the application for filing so that it may be disposed of under r 8A on the Court’s own initiative.  No hearing is required.

  5. Mr Hill’s application is a straight-forward abuse of process.  There are no grounds for recall;  he seeks rather to litigate his appeal as if the Court had never struck it out for non-payment of security.  The Court has previously remarked on his procedural delays and the absence of underlying merit.[4]  Further, he is now bankrupt and his estate is being administered by the Official Assignee, who does not support the application. 

    [4]In [2018] NZCA 280. The bankruptcy proceeding followed unsuccessful appeals on the merits.

  6. The recall application is dismissed accordingly.  We further order, in exercise of the Court’s power to prevent abuse of its processes, that no further recall applications may be filed in this proceeding.[5]

    [5]See Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [30] citing Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 536.

Solicitors:
Tu Tumu Paeroa, Wellington for Respondent


Details
AGLC
Hill v Maori Trustee [2019] NZCA 600
Case
[2019] NZCA 600
Decision Date

CaseChat Overview and Summary

The case of Hill v Maori Trustee involves an application by Mr Hill to recall a judgment that was previously struck out due to non-payment of security. The matter was heard by the Court of Appeal, which has jurisdiction to recall or reopen judgments under Rule 8A of the Court of Appeal (Civil) Rules 2005. The central issue before the court was whether there were sufficient grounds to justify recalling the judgment or whether Mr Hill’s application represented an abuse of process.

The court found that Mr Hill’s application was a clear abuse of process, as he was seeking to re-litigate his appeal despite the previous ruling that his appeal had been struck out for non-payment of security. The court noted that Mr Hill had a history of procedural delays and had previously been unsuccessful in his appeals on the merits. Additionally, Mr Hill was now bankrupt, and his estate, which was being administered by the Official Assignee, did not support the application. Given these circumstances, the court ruled that there were no valid grounds for recalling the judgment. The court also imposed an order preventing any further recall applications in this proceeding to prevent abuse of its processes.

In conclusion, the Court of Appeal dismissed Mr Hill’s application to recall the judgment. The court further ordered that no further recall applications could be filed in this proceeding, thereby reinforcing the principle that the court's processes are not to be abused. The court’s decision underscores the importance of procedural compliance and the consequences of failing to adhere to court-imposed deadlines and requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 8A of the Court of Appeal (Civil) Rules 2005 provides:8A Recalling or reopening judgment(1)The Court may, on an interlocutory application or on its own initiative, recall or reopen a judgment given in writing or orally, at any time before a formal record of it is drawn up and sealed.(2)Neither the parties nor their representatives have a right to appear before the Court on an application for a judgment to be recalled or reopened, unless the Court otherwise directs. We accept the application for filing so that it may be disposed of under r 8A on the Court’s own initiative. No hearing is required. Mr Hill’s application is a straight-forward abuse of process. There are no grounds for recall; he seeks rather to litigate his appeal as if the Court had never struck it out for non-payment of security. The Court has previously remarked on his procedural delays and the absence of underlying merit.[4] Further, he is now bankrupt and his estate is being administered by the Official Assignee, who does not support the application. [4]In [2018] NZCA 280. The bankruptcy proceeding followed unsuccessful appeals on the merits. The recall application is dismissed accordingly. We further order, in exercise of the Court’s power to prevent abuse of its processes, that no further recall applications may be filed in this proceeding.[5][5]See Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [30] citing Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 536.

Ratio Decidendi

Legal Principle Established

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