Hunter v Carden

The Court of Appeal of New Zealand heard an application for recall in the case of Hunter v Carden, where Keith Mervyn George Hunter sought recall of a judgment declining an extension of time for applying for the allocation of a hearing date and for filing the Case on Appeal. The judgment had concluded that the proposed appeal, a negligence claim over the conduct of litigation by David Martin Carden, had no merit. The respondent was awarded costs, and Mr. Hunter filed an application for recall on the grounds that the court had not addressed the central question of what would have happened if the respondent had run the initial litigation in accordance with his instructions. Additionally, Mr. Hunter argued that the award of costs was unreasonable due to the respondent's conduct during the case. The Court of Appeal, however, found no basis for recall, as the merits of the appeal were considered irrelevant once an appeal is out of time. Furthermore, the court found that the central question raised by Mr. Hunter was indeed considered in the judgment, and that the award of costs was conventional and consistent with usual practice.

The legal issues before the Court of Appeal involved the principles governing the recall of a judgment, as established in Horowhenua County v Nash (No 2). The appeal court considered whether the circumstances of the case warranted recall under the three categories identified in the earlier case. These categories include amendments to relevant statutes or regulations, failure of counsel to direct the court's attention to a relevant legislative provision or authoritative decision, and any other very special reason for which justice requires that the judgment be recalled. The Court of Appeal found no basis for recall under any of these categories and was satisfied that recall was not appropriate in this case.

The Court of Appeal found that Mr. Hunter's misapprehension about the likely outcome of his application was unfortunate and undesirable, but it did not warrant recall of the judgment. The court was focused on the merits of the proposed appeal, which was considered irrelevant once an appeal is out of time. The central question raised by Mr. Hunter was found to have been considered in the judgment, and the court's references to the Case on Appeal and material from the case reflected a concern to ensure nothing supporting Mr. Hunter's arguments was overlooked. The award of costs was considered conventional and consistent with usual practice in these cases.

The Court of Appeal declined the application for recall and made no order for costs on the recall application. The court recognised that 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.