Pridmore v Chief Executive of the Ministry of Social Development

[2017] NZHC 2569

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2016-485-000585 [2017] NZHC 2569

BETWEEN

JOHN PRIDMORE

Applicant

AND

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	On the papers
Judgment:	20 October 2017

JUDGMENT OF VENNING J ON RECALL APPLICATION

This judgment was delivered by me on 20 October 2017 at 12.45 pm;  pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Law, Wellington

Copy to:            Appellant

PRIDMORE v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC

2569 [20 October 2017]

[1]      In a judgment delivered on 4 October 2017 the Court dealt with Mr Pridmore’s appeal  from  the  decision  of  the  Social  Security Appeal Authority  declining  his application for New Zealand superannuation to be paid to him in Japan.  The appeal was by way of case stated.  It raised two questions:

(a)      Did the Authority err in its interpretation and application of s 26B of the New Zealand Superannuation and Retirement Income Act 2001 (the Act)?

(b)Was there any evidence on which the Authority could conclude that the appellant was not ordinarily resident in New Zealand at the time of his application for portability in 2011?

[2]      The Court answered the questions as follows:

(a)      No. The Authority did not err in its interpretation in the application of s 26B;  and

(b)Yes.  There was evidence on which the Authority could conclude Mr Pridmore was not ordinarily resident in New Zealand at the time of his application for portability in 2011.

[3]      The appeal was dealt with on the papers as Mr Pridmore lives in Japan.  The parties agreed the matter would be dealt with on the papers.

[4]      Mr Pridmore now seeks to recall the judgment.

[5]      He submits the judgment should be recalled because Mr Howell, who had been acting as his McKenzie friend, only received the Crown submissions and common bundle on 4 October, and Mr Pridmore says he did not receive the Crown submissions and common bundle until 7 October.

[6]      Mr Pridmore wishes to address further submissions, effectively submissions in reply.

[7]      Rule 11.9 of the High Court Rules enables a Judge to recall a judgment at any time before a formal record of it is drawn up and sealed.

[8]      Recalling a judgment is a serious step.  The judgment will only be recalled in limited circumstances.   The very limited circumstances in which a judgment may properly be recalled were recently confirmed by the Supreme Court in  Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2):1

[2]       Three categories of case have been recognised by the New Zealand courts in which a judgment may be recalled if not already perfected. They are conveniently set out in the judgment of Wild CJ in Horowhenua County v Nash (No 2):

“[F]irst, 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 authoritive decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.”

[9]      The first two criteria do not apply.  All relevant authorities were before the Court.  The leading authority in this area is the case of Greenfield v Chief Executive, Ministry of Social Development.2    The Court was aware of that decision and considered it in the course of its judgment.  Further, it was referred to in the decision of the Appeal Authority.  It was known to Mr Pridmore.

[10]     Nor is there any other very special reason to recall the judgment.

[11]     Mr Pridmore says he would like to make further submissions in light of the material provided by the Crown in its submissions.  But there was no provision for submissions in reply.

[12]     This was an appeal by way of case stated to be dealt with on the papers.  Even if the Crown were late in serving their submissions it could have had no impact on the

1      Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2010] 1 NZLR 76 (footnote omitted).

2      Greenfield v Chief Executive, Ministry of Social Development [2015] NZSC 139.

outcome of the answers to the legal questions.  The Court had all relevant material before it.

[13]     Essentially Mr Pridmore wants to reargue his case.  The cases he refers to in his application to recall cannot affect the Court’s ruling.  He also says he wishes to submit his letter of 22 July 2011 does not confirm his ordinary residence in Japan.  It simply indicated that he was living there.  That letter was only one factor taken into account by the Court in determining that there was evidence on which the Authority could conclude he was not ordinarily resident in New Zealand at the time he made his application for portability in 2011.

[14]     There is nothing raised in the material submitted on behalf of Mr Pridmore to satisfy the criteria for recall.

[15]     The application for recall is dismissed.

Venning J