K M G HUNTER Applicant AND F M COPLAND

[2001] NZCA 461

IN THE COURT OF APPEAL OF NEW ZEALAND  CA271/00

BETWEEN      K M G HUNTER

Applicant

AND                F M COPLAND

Respondent

Hearing:  24 October 2001

Coram:Elias CJ Tipping J Paterson J

Appearances:             Applicant in person

R O Parmenter for Respondent

Judgment:                 1 November 2001

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1]        This  is  an  application  to  recall  a  judgment  of  this  Court  delivered  on  6 September 2001. The applicant, Mr Hunter, has submitted that the judgment wrongly stated that, following the hearing, he had submitted two memoranda for the Court’s consideration without the knowledge of his counsel. Mr Hunter has told us that he did inform counsel of his intentions. He submits that the judgment should be recalled on account of this error. He further contended that the Court’s erroneous statement entitled him to question other elements of the judgment in circumstances which amounted essentially to a rehearing of the original appeal.

[2]        In oral development of his written submissions Mr Hunter suggested that the erroneous statement showed apparent bias on the part of the Court and that, for

further reasons which he developed, the proceedings should be  remitted  to  the High Court for rehearing there.

[3]        We accept that the Court was in error in making the statement in question.  Mr Hunter did indeed inform his then counsel, Ms Sim, of his intention to file additional submissions following the hearing of the appeal. However, what  is equally clear is that the erroneous statement had absolutely no bearing on the outcome of the appeal. The Court had already clearly signalled that the appeal  would be dismissed by not calling on Mr Parmenter to address it on behalf of the respondent, Ms Copland. Thus the statement of which Mr Hunter complains, being addressed to the later submissions, could have had no bearing on the outcome of the appeal which had already, by then, been determined. Mr Hunter’s application, however characterised, cannot surmount that logical hurdle.

[4]        The argument that the erroneous statement in the judgment justifies a complete rehearing of the appeal  is  similarly  untenable  as  a  ground  for  recall. Mr Hunter sought to raise various substantive matters to show that the judgment was wrong. Points of that kind can be mounted only by way of appeal.

[5]        We are satisfied that the application for recall cannot succeed. It is therefore dismissed with costs to the respondent in the sum of $2500.00 plus disbursements to be fixed if necessary by the Registrar.

Solicitors

Daniel Overton & Goulding, Onehunga, for Respondent