John Craig Ferrie Mabon v The Conference of the Methodist

[2001] NZCA 176

IN THE COURT OF APPEAL OF NEW ZEALAND CA173/00

BETWEEN	JOHN CRAIG FERRIE MABON
Appellant

AND	THE CONFERENCE OF THE METHODIST CHURCH OF NEW ZEALAND
Respondent

Hearing:	28 May 2001
Coram:	Gault J Keith J Tipping J
Appearances:	R P Harley and N M Barbich for Appellant D G Smith for Respondent
Judgment:	28 May 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

1. In this matter Reverend Mabon, appeals against the judgment of Goddard J delivered in the High Court at Wellington on 26 July 2000 insofar as that judgment dismissed his application for orders (a) recalling the judgment of the Full Court dated 18 October 1999 as corrected on 12 November 1999 and (b) directing rehearing of the application for review of the Master’s decision to which that Full Court decision related.

2. The appellant had previously appealed to this Court from the judgment of the Full Court of 18 October 1999 but, because he had not obtained leave to appeal, his appeal was struck out for want of jurisdiction:  Mabon v The Conference of the Methodist Church of New Zealand CA293/99, judgment 19 June 2000.  He subsequently sought from the High Court leave to appeal but that was refused in the judgment now under appeal.  That part of the judgment is not, and cannot be, appealed:  Seamar Holdings Ltd v Kupe Group Ltd [1995] 2 NZLR 274.

3. The present appeal, seeking from this Court orders for the recall of the Full Court judgment and rehearing of the matter is, in effect, an attempt to have this Court review on appeal the Full Court’s judgment, which this Court has previously decided it has no jurisdiction to entertain.  It would be strange indeed if the requirement in Rule 61C(6) of the High Court Rules, that appeals to this Court must be by leave, could be circumvented by asking the High Court to recall the judgment and then appealing without leave from the refusal.

4. Any application for recall should have been made and determined before the previous appeal.  Any application for leave to appeal (if made) then could have taken into account the application for recall.

5. There are two grounds for recall advanced on the present matter.  Both were rejected in the High Court.  The first was that the Full Court had no jurisdiction to entertain the application for review of the Master’s decision.  That is difficult to reconcile with the order now sought for rehearing of the matter in the High Court.  In any event, that jurisdiction existed under Rule 61C High Court Rules, as was recognised when the matter was previously before this Court.  It is not material that the appellant’s original application to the High Court specified the wrong rule.

6. Mrs Harley argued that the appellant has been denied an effective appeal from the Master’s decision because the approach under Rule 264 adopted by the Full Court was narrower than that which is to be followed under Rule 61C wherein subrule (4) specifies review by way of rehearing.  She submitted that the members of the Full Court limited themselves to (in effect) being satisfied that the decision was open to the Master.  We do not read the judgment in that way.  The Court determined that on the evidence and arguments before the Master his decision was correct.  That is entirely consistent with review by way of rehearing.  Accordingly, we are not persuaded that any prejudice flowed to the appellant from reliance on the incorrect rule.

7. The second ground for recall was that the appellant wishes to be given an opportunity to recast his case and effectively start again, his previous approach having proved unsuccessful.  That is no basis for an order recalling a judgment, and certainly not long after it has been sealed.

8. The further obstacle with which the appellant is confronted is that the whole proceeding as pleaded, alleging two causes of action, essential elements of which are the existence of a contract, is an attempt to relitigate the matter determined by this Court in a previous proceeding between the parties wherein it was determined that the appellant’s appointment did not rest on a contractual relationship:  Mabon v Conference of Methodist Church of New Zealand [1998] 3 NZLR 513. The belated attempt to recast the case to avoid this difficulty rests on inadmissible evidence and would seek relief under one cause of action against a non-party.

9. Accordingly, we are satisfied this appeal constitutes an abuse of process in its attempt to circumvent the leave requirement, and, in any event, is entirely without merit.

10. The appeal accordingly is dismissed.

11. Having heard counsel on the matter of costs, we award to the respondent costs in the sum of $5,000 together with disbursements including the reasonable travel and accommodation costs of counsel approved, if necessary, by the Registrar.

Solicitors
Lloyd Dodson & Pringle, Dannevirke for Appellant
Cairns Slane, Auckland, for Respondent