Nottingham v Maltese Cat Limited - [2020] NZCA 31

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA572/2017
[2020] NZCA 31

BETWEEN	DERMOT NOTTINGHAM Applicant
AND	MALTESE CAT LIMITED First Respondent CLYDE ALEXANDER MacLEAN Second Respondent ELIZABETH MAY CURRIE Third Respondent JOHN DOE AND/OR JANE DOE Fourth Respondent

Court:	Courtney, Brewer and Gendall JJ
Counsel:	Applicant in Person D Connor and K Chow for First, Second and Third Respondents
Judgment: (On the papers)	28 February 2020 at 9.30 am

JUDGMENT OF THE COURT

A The application for recall is dismissed.
B The respondents shall have costs on a band A basis.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Mr Nottingham applied unsuccessfully in the High Court to strike out the respondents’ claim on the basis that it is time-barred.[1] This Court dismissed Mr Nottingham’s appeal against that decision.[2] Mr Nottingham was ordered to pay one set of costs for a standard appeal on a band A basis with usual disbursements. He has now applied for a recall of the judgment and a rehearing of the appeal on various issues.
[1]Maltese Cat Ltd v John Doe and/or Jane Doe [2017] NZHC 1728, (2017) 24 PRNZ 254 at [22].
[2]Nottingham v Maltese Cat Limited [2019] NZCA 641.
Rule 8A of the Court of Appeal (Civil) Rules 2005 provides that the Court may recall or reopen a judgment. However, the circumstances in which it will do so are very limited.[3] The criteria are those set out in Horowhenua County v Nash (No 2):[4]
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 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 high 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.
[3]Erwood v Maxted [2010] NZCA 93, [2010] 20 PRNZ 466 at [23].
[4]Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC).
Mr Nottingham identifies five grounds for his application. They can be broadly summarised as follows:
(a)the costs awarded are punitive and unfair in the circumstances;
(b)in considering costs the Court failed to take into account allegations of perjury by the respondents and the merits of Mr Nottingham’s substantive argument;
(c)there were errors of law by the Court and bias by one of the panel;
(d)there is a history of this Court making decisions adverse to Mr Nottingham; and
(e)Mr Nottingham’s rights under the New Zealand Bill of Rights Act 1990, the International Covenant on Civil and Political Rights and the Declaration of the Right and Responsibility of Individuals, Groups and Organs of Society to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZCA 31
Decision Date: 28 February 2020 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for recall from Dermot Nottingham against Maltese Cat Limited and others. Nottingham had previously appealed a High Court decision that dismissed his application to strike out a claim by the respondents on the grounds that it was time-barred. The appeal was dismissed by the Court of Appeal, and Nottingham was ordered to pay costs on a band A basis. Nottingham now seeks a recall of the judgment and a rehearing of the appeal on various grounds, including that the costs awarded were punitive and unfair, and that the Court failed to consider allegations of perjury by the respondents and the merits of Nottingham's substantive argument. Nottingham also claimed that there were errors of law by the Court and bias by one of the panel, and that his rights under various human rights instruments were not observed.

The Court of Appeal found that the circumstances in which it will recall or reopen a judgment are very limited and are set out in Horowhenua County v Nash. The Court found that none of the matters Nottingham raised were within the category of cases appropriate for recall, and that Nottingham's proper course was to pursue the application for leave to appeal to the Supreme Court that he filed prior to making the present application. The Court granted the respondents' request for costs on a band A basis.

In summary, the Court of Appeal dismissed Nottingham's application for recall and ordered him to pay costs on a band A basis. The Court found that Nottingham's grounds for recall were not within the limited circumstances in which a judgment may be recalled, and that Nottingham's proper course was to pursue an application for leave to appeal to the Supreme Court. The Court granted the respondents' request for costs on a band A basis.

Orders