McLanahan v New Zealand Registered Boards
[2017] NZCA 606
•18 December 2017 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA529/2016 [2017] NZCA 606 |
| BETWEEN | JEREMIAH MCLANAHAN AND E-LYN TAN |
| AND | THE NEW ZEALAND REGISTERED ARCHITECTS BOARD STEPHEN MCDOUGALL |
| Court: | French, Winkelmann and Brown JJ |
Counsel: | H N McIntosh for Appellants |
Judgment: (On the papers) | 18 December 2017 at 11.30 am |
JUDGMENT OF THE COURT
The application for recall is granted in part.
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REASONS OF THE COURT
(Given by Brown J)
The appellants apply for recall of the judgment of this Court delivered on 17 October 2017.[1] In that judgment we quashed the decision of the first respondent, the New Zealand Registered Architects Board (the Board), regarding 23 heads of complaint that the Board had dismissed solely in reliance on r 62(a) of the Registered Architects Rules 2006 (the Rules). We held that the ground of dismissal in r 62(a) — that there is no applicable ground of discipline — was jurisdictional in nature and did not involve an evidential evaluation. Because that issue was determinative of the appeal, we did not go on to address the other grounds of appeal put forward by the appellants.
[1]McLanahan v The New Zealand Registered Architects Board [2017] NZCA 458.
Two reasons are advanced for the recall.
The first concerns the correct interpretation of r 50 of the Rules, which prohibits an architect undertaking professional work before the “terms of appointment” are agreed with the client. The appellants’ complaint of a breach of r 50 was one of the 23 heads of complaint that was referred back to the Board for consideration.
In applying for recall, the appellants make the point that, on its reconsideration of that particular complaint, the Board will be bound by the ruling of the High Court as to the interpretation of r 50.[2] Given that the High Court’s interpretation was challenged on appeal, they submit it would be preferable for this Court to address the interpretation issue prior to the Board’s reconsideration.
[2]McLanahan v The New Zealand Registered Architects Board [2016] NZHC 2276 at [154].
We accept there is merit in the appellants’ contention and that it is a matter warranting the recall of the judgment so that the issue of interpretation of the rule is resolved definitively before the matter is further considered by the Board.[3] Accordingly, we grant the application for recall on this basis.
[3]We consider this fits into the third category set out in Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 of “some other very special reason justice requires that the judgment be recalled”.
The second basis for the recall application concerns the reference at [67] of our judgment to an “evidential threshold” in the context of a discussion of r 62(c) of the Rules. The appellants question whether the reference to “evidential” was a slip and inquire whether another meaning might have been intended.
There was no slip in the language at [67]. To the extent it was advanced on that basis, the application for recall is declined.
Result
The application for recall is granted in part.
Solicitors:
Gibson Sheat, Wellington for Appellants
Lundons Law, Blenheim for First Respondent
Rainey Collins, Wellington for Second Respondent
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