Jin v North Shore District Council

[2016] NZHC 2417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004905 [2016] NZHC 2417

BETWEEN

RUJING JIN

Applicant

AND

NORTH SHORE DISTRICT COURT First Respondent

YASUKI KONISHI AND MAKIKO KONISHI

Second Respondents

Hearing:	(On the papers)
Judgment:	11 October 2016

JUDGMENT OF VENNING J

This judgment was delivered by me on 11 October 2016 at 12.15 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Y Lee, Auckland

North Shore District Court

D B Hickson, Auckland

JIN v NORTH SHORE DISTRICT COURT & ORS [2016] NZHC 2417 [11 October 2016]

[1]      Ms  Jin  seeks  to  pursue  an  application  to  recall  a  judgment  of  Wylie  J delivered on 20 June 2013.1   In the absence of Wylie J on sick leave the Registrar has referred the application to me.

Brief background

[2]      In a judgment delivered on 19 February 2013 Wylie J dismissed Ms Jin’s application to judicially review various decisions said to have been made by the District Court in proceedings before that Court between Ms Jin and the second respondents.2    In a subsequent decision delivered on 18 April 2013 Wylie J fixed

costs in favour of the second respondents3 (collectively the initial decisions).

[3]      Ms Jin appealed the initial decisions.  Her appeal was dismissed by the Court of Appeal in a judgment delivered on 10 October 2013.4   Ms Jin then unsuccessfully sought leave to appeal to the Supreme Court.  That application was itself dismissed on 12 February 2014.5

[4]      In the meantime and following the initial decisions Ms Jin had sought interim declaratory relief in this Court and sought orders that no further steps be taken in the District Court pending final determination of her appeal by the Court of Appeal.  In a judgment  delivered  on  20  June  2013  Wylie J  declined  that  application.6      In  a subsequent decision on 23 July 2013 Wylie J fixed costs on that second unsuccessful application for relief in the High Court.7

[5]      Ms Jin, through counsel Mr Lee, now seeks to recall the judgment of 20 June

2013 (and implicitly the subsequent costs order of 23 July 2013).   It appears the application was filed some time ago.   There is correspondence from the Registry

which suggests the application was before the Court on 27 February 2013.

1      Jin v North Shore District Court [2013] NZHC 1519.

2      Jin v North Shore District Court [2013] NZHC 243.

3      Jin v North Shore District Court [2013] NZHC 810.

4      Jin v North Shore District Court [2013] NZCA 475.

5      Jin v North Shore District Court [2014] NZSC 1.

6      Jin v North Shore District Court, above n 1.

7      Jin v District Court at North Shore [2013] NZHC 1839.

[6]      Ms Jin, through Mr Lee, seeks to renew the application now given that Ms

Jin faces a bankruptcy hearing in this Court.

[7]      As with the earlier applications to this Court and the Court of Appeal the application for recall is misconceived.

[8]      There is no basis to make an order for recall under r 11.9 of the High Court

Rules as the judgment and costs orders have been sealed.

[9]      Even if the judgment and costs order had not been sealed, this is not a case where the Court would exercise jurisdiction to recall the judgment.  The matters that are argued to support the recall are that the second respondents had no locus standi to appear before the Court and that the District Court had no jurisdiction in the matter so that the District Court Judges’ decisions were effectively ultra vires.  It is said the second  respondents’ claim  in  the  District  Court  was  superfluous  and  vexatious. Similar ultra vires arguments were raised on appeal and dismissed by the Court of Appeal.

[10]     The applicant respondent also now refers to subsequent decisions delivered after the decision of 20 June 2013.   None of those factors support recall of the Judge’s decision of 20 June and the subsequent costs decision which related to a misconceived application to this Court.

[11]     The Judge was, with respect, undoubtedly correct not to grant interim relief pending the final determination of the appeal in the Court of Appeal.

[12]     As noted the appeal against the initial decisions was dismissed by the Court of Appeal and the subsequent application for leave to appeal to the Supreme Court was also dismissed. As the Court of Appeal observed in dismissing the appeal:8

[59]     In the present case [Ms Jin] and her counsel have been guilty of a signal failure to act in a way that is designed to achieve the objective of the Rules, namely to secure the just, speedy and inexpensive determination of the proceeding. They have embarked on a series of interlocutory applications and on a wholly unnecessary judicial review application and appeal in a way that is seriously disproportionate to the amounts at issue.

8      Jin v North Shore District Court, above n 4.

[13]     The application for recall is yet another example of this.

[14]     To the extent the application for recall has not been dealt with previously it is formally dismissed.

Venning J