Lee v District Court at North Shore

[2018] NZCA 25

IN THE COURT OF APPEAL OF NEW ZEALAND

CA410/2017
[2018] NZCA 25

BETWEEN

YOON LEE
Appellant

AND

DISTRICT COURT AT NORTH SHORE
First Respondent

YASUKI KONISHI AND MAKIKO KONISHI
Second Respondents

Court:

Winkelmann, Venning and Duffy JJ

Counsel:

Appellant in person
First Respondent abides
D B Hickson for Second Respondents

Judgment:

(On the papers)

28 February 2018 at 10.30 am

JUDGMENT OF THE COURT

AThe application for recall is declined.

BThe second respondents’ application for costs on the recall application and on the release of security for costs is also declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

1. On 20 December 2017, this Court dismissed Mr Lee’s appeal against a judgment of Gilbert J awarding the Konishis indemnity costs which Mr Lee was ordered to pay personally as counsel.[1]

   [1]Lee v District Court at North Shore [2017] NZCA 616.

2. Mr Lee now applies for recall of this Court’s judgment dismissing the appeal.  He does so on the grounds that the judgment was wrong in various respects and that he was not heard on some issues. 

3. The test for recall of civil judgments is as stated by Wild CJ in Horowhenua County v Nash (No 2):[2]

   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 higher 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.

   [2]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

4. Mr Lee argues the grounds he advances in support of the recall are very special reasons for the purposes of the test set out in Horowhenua County. 

5. While there is no single definition of the third category identified in Horowhenua County, the discretion to recall must be exercised with circumspection, and must not be used as a substitute for appeal.[3]  It does not extend to a challenge to any substantive findings of fact or law in the judgment, nor to a recasting of arguments previously given and re-presented in a new form.

   [3]Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13].

6. Re-running or recasting the arguments adduced at hearing is just what Mr Lee seeks to do.  At times Mr Lee says he seeks clarification but again is simply seeking to advance further arguments in support of an appeal that has already been argued and dismissed.  Mr Lee also claims some of his arguments were not addressed in the judgment, but we are satisfied that all arguments of any relevance to the appeal were addressed.  Finally, Mr Lee claims he was not heard on some points.  Mr Lee filed extensive legal submissions for the appeal and was given adequate opportunity at the hearing to address relevant arguments in oral submissions to the Court. 

7. It follows that we are satisfied that none of the grounds for recall are made out. 

8. At this point we address a lengthy memorandum opposing Mr Lee’s application for recall filed by Mr Hickson for the second respondents.  As well as opposing the application for recall, Mr Hickson seeks indemnity costs on that application and costs on an application for the release of security for costs.  He says that the release of security for costs to him was unreasonably resisted by Mr Lee, and that the application for recall was improper, unnecessary, frivolous and vexatious.

9. We do not award costs to the second respondents in respect of the application for recall.  Whilst the second respondents were entitled to notify the Court of their opposition to the recall, one or two paragraphs would have sufficed for that purpose.  Mr Lee’s original memorandum was five pages long.  Mr Hickson’s reply was 12 pages long, with additional attachments and an extensive affidavit in opposition. There was no need for such an extensive response.   

10. As to the release of security for costs, we accept that it was wrongheaded of Mr Lee to oppose the release of security when costs had been awarded against him on the appeal.  But the attendances for which Mr Hickson seeks recompense were minor, and little (if anything) more than he would have been required to do had Mr Lee not opposed the release.  Again, against that background, we do not consider any award of costs is appropriate.

11. Finally, Mr Hickson asks that this Court refer these proceedings to the Attorney-General so that application may be made for an order under s 166 of the Senior Courts Act 2016.  We see no basis for the Court to take such action at this point.

Result

1. Accordingly:

   (a)the appellant’s application for recall is declined; and

   (b)the second respondents’ application for costs on the recall application and on the release of security for costs are also declined.

Solicitors:
Crown Law Office, Wellington for First Respondent