Pickard v Ambrose

[2012] NZHC 673

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2003-091-143 [2012] NZHC 673

BETWEEN  AMANDA PICKARD First Plaintiff

ANDTROY TAYLOR Second Plaintiff

ANDCHAS AMBROSE First Defendant

ANDRINNAI NEW ZEALAND LIMITED Second Defendant

Hearing:         On the papers

Counsel:         Plaintiff in person

I G Hunt and A R Armstrong for First Defendant
PJL Hunt and G D Simms for Second Defendant

Judgment:      4 April 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 4.30pm on the 4th day of April 2012.

JUDGMENT OF MACKENZIE J

[1]      In my minute dated 15 December 2011, I fixed a timetable for the filing of submissions on two applications:

(a)       An application by Ms Pickard for a stay of execution of my costs judgment delivered on 6 October 2011, pending an appeal against that

judgment;  and

PICKARD V AMBROSE HC WN CIV-2003-091-143 [4 April 2012]

(b)An application by the first defendant for recall of that part of the judgment dealing with the calculation of disbursements for the legally aided period.

[2]      Ms Pickard’s submissions in support of her application for a stay were to be filed and served by 9 March 2012.  The submissions were not filed by the due date. Ms Pickard telephoned the registry on 27 March to inquire whether it was too late for her to file submissions.  The registry referred that request to me, and I advised that  submissions  would  be  accepted  if  filed  by  5pm  on  Wednesday,  28 March. Lengthy submissions were received by e-mail on Friday, 30 March, including advice that an unsuccessful attempt to send them by e-mail had been made on Thursday,

29 March.

[3]      Most of the material in those submissions is directed to issues which are not relevant to the application for stay.  They address issues related to the substantive judgment.  I dealt in my costs judgment with the limitations on the powers of this Court in relation to the issues arising from that judgment.  I repeat what I said there:[1]

[1] Pickard v Ambrose HC Wellington CIV-2003-091-143, 6 October 2011 at [3].

In  the  submissions  filed  by  or  on  behalf  of  Ms  Pickard, Troy,  and  Mr Pickard, there is much material which seeks to revisit aspects of issues which were addressed at trial. I should explain at the outset that there are severe constraints on the extent to which I can properly have regard to much of that material in considering the defendants’ applications relating to costs. So far as the issues which were raised at trial are concerned, I have delivered my judgment. My function in respect of those issues has ended. I have no power or jurisdiction to revisit any aspects of that judgment. That limits the matters to which I may properly have regard in considering costs. I make these observations at the outset to explain why I do not, in the course of this judgment, address much of what Ms Pickard in particular has raised. It would not be proper for me to do so. I must approach all questions relating to costs on the basis of the findings in my judgment.

[4]      It  is  regrettable  that  Ms Pickard  has  spent  so  much  time  and  energy  on preparing submissions which it is simply not possible for me to take into account.

[5]      The  principal  consideration  which  is  relevant  in  deciding  whether  there should be a stay of the costs judgment is whether there is an appeal against that

judgment and, if so, whether a stay is desirable to avoid possible hardship if the costs judgment were enforced before the appeal can be heard.

[6]      Ms Pickard sought an extension of time for appealing against the substantive judgment delivered on 21 December 2009.  That was refused by the Court of Appeal in a judgment delivered on 18 March 2011. So no question of a possible appeal against the substantive judgment arises in considering the possible stay of the costs judgment.

[7]      Ms Pickard advised, on 12 December 2011, that no appeal had then been lodged against the costs judgment. An extension of time for appealing will therefore be necessary before an appeal can be pursued.  Counsel for the second respondent has  made  inquiries  of  the  Court  of  Appeal  registry,  and  advises  that,  as  at

23 March 2012, no such application had been made.

[8]      Because there is no appeal against the costs judgment, there are no grounds on which a stay of that judgment could properly be granted.

[9]      Ms Pickard’s application for a stay of execution pending appeal is dismissed.

[10]     I also deal with the first defendant’s application for recall.   In [23] of my costs judgment, I fixed the amount of costs and disbursements which would have been awarded if s 40 of the Legal Services Act 2000 had not affected Ms Pickard’s liability for costs.   I noted that the second defendant claimed disbursements in the relevant period of $24,147.05.  Counsel for the first defendant has pointed out that the total disbursements during the legally aided period were twice the sum specified, and that each defendant had paid one half.  Accordingly, my fixing of disbursements for the second defendant only was in error.

[11]     A judgment may be recalled before it is sealed, under r 11.9 of the High Court Rules.   This will only be done where, for some very special reason, justice requires that the judgment be recalled.[2]

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

[12]     The fixing of disbursements was relevant only for enabling the defendants to pursue an application under s 41 of the Legal Services Act 2000 (or s 46 of the Legal Services Act 2011).  In the circumstances, I do not consider that the inability of the first defendant to pursue such an application for disbursements will create a risk of injustice such that the power to recall the judgment, which is to be exercised sparingly, should be exercised.

[13]     The application for recall is refused.

Solicitors:           Young Hunter, Christchurch, for First Defendant

McElroys, Auckland, for Second Defendant

Copy to Ms Pickard

“A D MacKenzie J”