Hunter v Carden

[2009] NZCA 36

IN THE COURT OF APPEAL OF NEW ZEALAND

CA30/2008
[2009] NZCA 36

BETWEENKEITH MERVYN GEORGE HUNTER

Applicant

ANDDAVID MARTIN CARDEN

Respondent

Court:Robertson, Ellen France and Baragwanath  JJ

Counsel:Applicant in person

M O Robertson and H M Twomey for Respondent

Judgment:26 February 2009 at 10.30 am 

(on the papers)

JUDGMENT OF THE COURT

AThe application for recall is declined.

BNo order for costs.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] Mr Hunter seeks recall of the judgment which this court gave on 16 December 2008. The judgment declined an application for extension of time for applying for the allocation of a hearing date and for filing the Case on Appeal: [2008] NZCA 556.

[2]       The application for an extension of time was declined on the basis that the proposed appeal (a negligence claim over the conduct of litigation by Mr Carden) had no merit.  The respondent was awarded costs for a standard application for leave on a band A basis and usual disbursements.

The recall application

[3]       The grounds in support of the recall application can be summarised under three heads.  First, matters arising from the way in which Mr Hunter’s application for an extension of time and other documentation was dealt with by the Court.  In particular, Mr Hunter says he was led by his communications with the Registry to understand his application would be treated favourably.  He also points out that the Case on Appeal was filed within the period of time for which an extension was sought.  Finally, Mr Hunter submits, the Court’s retention and then use of the Case on Appeal suggests the case had been “filed”.

[4]       The second ground advanced is that the Court’s judgment does not address the central question, that is, what would have happened if the respondent had run Mr Hunter’s initial litigation in accordance with his instructions.

[5]       The final matter raised by Mr Hunter relates to costs.  In particular, Mr Hunter says there were no submissions on costs and the Court’s award of costs is unreasonable because of the respondent’s conduct of the case.  The emphasis in that respect is on the timing of the respondent’s objection to the application for an extension of time.  Mr Hunter also objects to the respondent’s failure to provide Mr Hunter with copies of the authorities on which he intended to rely.

[6]       The respondent opposes the recall application on the grounds that none of the circumstances in which there may be recall of a judgment apply.

Discussion

[7]       The principles governing recall of a judgment are well settled and are set out in Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC). Wild CJ said at 633:

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]       There is no suggestion that either the first or second circumstance identified in Horowhenua v Nash applies so the issue is whether for some other very special reason justice requires recall.  Having considered the submissions, we are satisfied recall is not appropriate.

[9]       There may well have been a misapprehension on Mr Hunter’s part as to the likely outcome of his application and, if so, that is both unfortunate and undesirable.  However, at least in the present case, that does not make recall appropriate.

[10]     In this case, it was accepted that an extension of time was required but no issue was taken by the respondent about the cause of the delay.  Rather, the focus was on the merits of the proposed appeal and, once an appeal is out of time, the merits of the proposed appeal become a relevant consideration.

[11]     We turn then to the merits, Mr Hunter’s second ground for recall.  In this context, it is submitted that the Court should have considered what would have happened if the respondent had run Mr Hunter’s initial case in accordance with Mr Hunter’s instructions.  That question is, however, the focus of the judgment.  That is what is captured by the conclusion at [20], ie:

It follows that it is not possible that Mr Hunter could have been better off had the case been run differently.

[12]     We add here that nothing turns on the Court’s references to the Case on Appeal in the course of the hearing and to material from the case in the judgment.  Those references reflect a concern to ensure nothing supporting Mr Hunter’s arguments was overlooked.

[13]     Finally, as to costs, costs conventionally follow the event and the award made is consistent with the usual practice in these cases.

[14]     For these reasons, we see no basis for recall.  We make no order for costs on the recall application, recognising there may have been some misapprehension on Mr Hunter’s part as to the premise underlying the Court’s conclusion that the appeal was without merit.  

Solicitors:

Shieff Angland, Auckland