Malcolm Edward Rabson v Linda Gallagher

IN THE SUPREME COURT OF NEW ZEALAND

SC 3/2017
[2017] NZSC 63

BETWEEN

MALCOLM EDWARD RABSON
Applicant

AND

LINDA GALLAGHER
First Respondent

MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST
Second Respondent

WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER‑RABSON FAMILY TRUST
Third Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	Applicant in person N Levy for First Respondent S A Barker for Third Respondent
Judgment:	4 May 2017

JUDGMENT OF THE COURT

The application for recall is dismissed.

___________________________________________________________________

REASONS

The applicant seeks a recall of the judgment of this Court delivered on 5 April 2017 refusing him leave to appeal against a judgment of the Court of Appeal.[1]
[1]Rabson v Gallagher [2017] NZSC 44.
The bases upon which recall is sought consist of (a) a complaint that in the judgment under challenge, the Court of Appeal’s “refusal to clarify” its orders was unreasoned; (b) the picking up of a remark made in the leave judgment of this Court that there had been no explicit explanation of the reasons for the structure of the original orders; and (c) that it is “an affront to natural justice” for this Court to decline leave for an appeal which would clarify those orders.
The Court of Appeal did, in fact, express its view as to the scope of the reservation of leave. The leave judgment provided what this Court regarded as a plausible explanation for the structure of the original orders. And, as the judgment makes clear, the Court was satisfied that the applicant could not credibly maintain that he had suffered a miscarriage of justice; this irrespective of the approach taken to the extent of the reservation of leave.
The recall application is accordingly declined.

Solicitors:
Mary Jeffcoat, Wellington for First Respondent
Buddle Finlay, Wellington for Third Respondent

CaseChat Overview and Summary

The applicant, Malcolm Edward Rabson, sought a recall of a judgment made by the Supreme Court of New Zealand on 5 April 2017. The judgment had refused Rabson leave to appeal against a decision of the Court of Appeal. Rabson was the first respondent in the original case, while Linda Gallagher was the first respondent in this recall application. The second respondent was Malcolm Edward Rabson as trustee of the Malcolm Rabson Family Trust, and the third respondent was Wayne Seymour Chapman as trustee of the Gallagher-Rabson Family Trust. The case was heard by Elias CJ, William Young and Arnold JJ.

The legal issues before the court were whether the Court of Appeal's refusal to clarify its orders was unreasoned, whether the leave judgment of the Supreme Court had picked up a remark that there had been no explicit explanation of the reasons for the structure of the original orders, and whether it was an affront to natural justice for the Supreme Court to decline leave for an appeal which would clarify those orders. The court had to consider these issues in light of the Court of Appeal's view on the scope of the reservation of leave, the explanation provided in the leave judgment for the structure of the original orders, and whether Rabson could credibly maintain that he had suffered a miscarriage of justice.

The court found that the Court of Appeal had, in fact, expressed its view on the scope of the reservation of leave. The leave judgment provided a plausible explanation for the structure of the original orders. The court was satisfied that Rabson could not credibly maintain that he had suffered a miscarriage of justice, irrespective of the approach taken to the extent of the reservation of leave. Therefore, the recall application was declined. The court found that the application did not meet the criteria for recall and there was no basis for the applicant to succeed in his application.

The final orders of the court were that the application for recall was dismissed. The court found that the application did not meet the criteria for recall and there was no basis for the applicant to succeed in his application. The court's decision was based on the Court of Appeal's view on the scope of the reservation of leave, the explanation provided in the leave judgment for the structure of the original orders, and whether Rabson could credibly maintain that he had suffered a miscarriage of justice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established