Nottingham v Real Estate Agents Authority - [2017] NZCA 145

IN THE COURT OF APPEAL OF NEW ZEALAND

CA437/2015
[2017] NZCA 145

BETWEEN	DERMOT GREGORY NOTTINGHAM, PHILLIP NOTTINGHAM AND ROBERT EARLE MCKINNEY Appellant
AND	THE REAL ESTATE AGENTS AUTHORITY First Respondent
AND	MARTIN RUSSELL HONEY Second Respondent

Court:

Asher, Heath and Dobson JJ

Counsel:

P Nottingham and R E McKinney in Person
M J Hodge for First Respondent
D W Grove for Second Respondent

Judgment:

(On the papers)

28 April 2017 at 3 pm

JUDGMENT OF THE COURT

A The application for recall is declined.

BThe appellants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Mr D Nottingham, Mr P Nottingham and Mr McKinney (the appellants) seek an order recalling a judgment of this Court of 27 February 2017.[1]

Background

[1]Nottingham v Real Estate Agents Authority [2017] NZCA 1.

The appellants are engaged in a long and bitter dispute with Mr Honey and the Real Estate Agents Authority. That dispute and its procedural history are set out in detail in the judgment sought to be recalled, and need not be repeated here.[2]
[2]At [1]–[11].
For the purposes of the present application we note that shortly before the hearing in this Court we declined an application for an adjournment. We provided the parties with our reasons for doing so. In summary, these were:
(a)this was the second application for an adjournment;
(b)the lateness of the application was not explained;
(c)we were not satisfied that the circumstances warranted a second adjournment; and
(d)there was a need to achieve finality in proceedings that had already run for a long period.
We allowed the appeal, but only to supplement the original order of Thomas J with a direction that the Tribunal panel re-hearing the complaint not include any members of the panel who originally considered the complaint. We rejected the appellants’ claims of bias in the proceedings below. In particular, we took judicial notice of the fact that the National Transcription Service (NTS) performs transcription services for all statutory tribunals administered by the Ministry of Justice, and that there is no opportunity for a judicial officer to interfere with the recording and retention of transcripts in that process.

The application

The appellants’ application for recall focuses on this Court’s response to the appellants’ allegation that the transcription of the proceeding in the Tribunal was doctored by members of that Tribunal to show themselves in a more favourable light. There are two key complaints:
(a)the Court should have allowed the second application for an adjournment. The adjournment would have allowed Mr D Nottingham to give evidence, based on his own research, as to the possibility of transcription doctoring; and
(b)the Court failed to properly investigate the allegation of transcription doctoring, and should not have taken judicial notice of the NTS process.
The first and second respondents oppose the application for recall. They submit that the application is unmeritorious and amounts to an attempt 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: [2017] NZCA 145
Decision Date: 28 April 2017 at 3 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for recall from Dermot Gregory Nottingham, Phillip Nottingham, and Robert Earle McKinney, collectively known as the appellants, against the Real Estate Agents Authority and Martin Russell Honey, the respondents. The appellants sought to recall a previous judgment of the Court of Appeal dated 27 February 2017. This case is part of a protracted and contentious legal battle between the appellants and the respondents, which has seen numerous hearings and appeals. The appellants' primary grievances were the Court's refusal to grant a second adjournment and its failure to adequately investigate the claim that the transcript of a tribunal proceeding was altered. The appellants also sought to challenge the Court's rejection of their allegations of bias and conspiracy against the tribunal members and other judicial officers.

The appellants argued that the Court should have allowed their second application for an adjournment to enable Mr. Nottingham to testify about the alleged tampering of the transcript. Additionally, they contended that the Court had not properly investigated the transcription doctoring claim and should not have taken judicial notice of the National Transcription Service (NTS) process. The respondents, in turn, opposed the application, asserting that it was unmeritorious and an attempt to relitigate matters already decided. The legal principle governing the recall of judgments was articulated by Wild CJ in Horowhenua County v Nash (No 2), which outlined that recall is permissible only in exceptional circumstances, such as amendments to relevant statutes, new judicial decisions of high authority, or where justice requires it due to other special reasons. The Court of Appeal noted that the recall power is not meant to be a substitute for appeal and cannot be used to challenge substantive findings, recast arguments, or overturn interlocutory decisions.

The Court of Appeal concluded that the appellants' application did not meet any of the rare circumstances justifying recall. The application was essentially an attempt to reopen substantive matters already decided, with much of the supporting material being irrelevant. The Court emphasized the importance of finality in litigation, especially in cases with a prolonged history of disputes, as seen in this case. The Court found that the appellants' allegations of bias and conspiracy were unsupported by evidence and had been previously rejected by both the High Court and the Court of Appeal. The Court of Appeal declined the application for recall and ordered the appellants to pay the respondents' costs for the application, along with usual disbursements.

Orders