Rabson v Transparency International New Zealand Inc

[2016] NZCA 26

IN THE COURT OF APPEAL OF NEW ZEALAND

CA156/2015
[2016] NZCA 26

BETWEEN	MALCOLM EDWARD RABSON AND RICHARD JOHN CRESER Appellants
AND	TRANSPARENCY INTERNATIONAL NEW ZEALAND INCORPORATED Respondent

Court:

Wild, Miller and Cooper JJ

Counsel:

Appellant Mr Creser in person
D R Kalderimis and K E Yesberg for Respondent

Judgment:

(On the papers)

24 February 2016 at 2.30 pm

JUDGMENT OF THE COURT

A        The application for recall is dismissed. 

BThe appellant Mr Creser is to pay the respondent’s costs in the sum of $500.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

1. By application filed on 17 December 2015 the appellants, or at least the appellant Mr Creser, requests this Court to recall the judgment it delivered on 12 November 2015.[1]

   [1]Rabson v Transparency International New Zealand Inc [2015] NZCA 543.

2. The nub of the recall application is that this appeal was deemed abandoned on 26 June 2015, pursuant to r 43(1) of the Court of Appeal (Civil) Rules 2005.[2]  There was therefore no extant appeal for this Court to strike out.

   [2]If Mr Creser’s argument is correct, the date on which the appeal would have been deemed abandoned was 30 June 2015, as the time for compliance with r 43 of the Court of Appeal (Civil) Rules 2005 was extended by Randerson J in Rabson v Transparency International New Zealand Inc [2015] NZCA 188.

3. This very point was the basis for the application the appellant Mr Rabson made to the Supreme Court, seeking leave to appeal the judgment Mr Creser is now requesting this Court to recall. 

4. In the judgment it delivered on 16 February 2016, the Supreme Court dismissed that application for leave to appeal.[3]  The Supreme Court detailed what had happened in this Court, importantly that Mr Rabson had made a timely r 43(2) application for an extension of time, which was addressed by Wild J in a minute dated 4 August 2015,[4] but not finally determined.  The Court then stated:[5]

   In those circumstances, it is at least open to question whether the effect of r 43(1) was that the appeal was to be treated as abandoned so as to obviate the need for, or appropriateness of, an order striking it out.

   [3]Rabson v Transparency International New Zealand Inc [2016] NZSC 9 [SC judgment].

   [4]Rabson v Transparency International New Zealand Inc CA156/2015, 4 August 2015 (Minute and Direction of Wild J) at [7]–[8].

   [5]SC judgment, above n 3, at [3].

5. That view that this appeal had not been deemed abandoned through the operation of r 43(1), or at least that that was arguably not the position, is binding on this Court.[6]  Rule 43(3) permits an application under r 43(2), for an extension of time, to be made at any time within three months after the appeal has been deemed abandoned pursuant to r 43(1).  The intention of r 43 is thus that the appeal is deemed abandoned (and thus is at an end) for all purposes except a timely r 43(2) application.

   [6]The Supreme Court similarly commented that Mr Rabson’s r 43(2) application to this Court was “not decided” in decisions declining leave to appeal the Minute and Direction of Wild J, above n 4: Rabson v Transparency International New Zealand Inc [2015] NZSC 145; and in declining to recall that decision: Rabson v Transparency International New Zealand Inc [2015] NZSC 153.

6. Mr Creser relies on the Supreme Court’s judgment in Rabson v Chapman.[7]  That case was decided before the Supreme Court’s decisions relating to the present appeal, to which we have referred at [3] and footnote 6 above.  It is not comparable to this one, because there had been no application under r 43(2) for an extension of time and the period during which any such application could have been made had expired.  It was thus clear the appeal had been deemed abandoned.

   [7]Rabson v Chapman [2014] NZSC 90. The Supreme Court has since, on 23 February 2016, dismissed a second application by Mr Rabson for leave to appeal: Rabson v Chapman [2016] NZSC 14.

7. None of the well established grounds for recall is made out.[8]  Indeed, the converse is true.  The first established situation in which a judgment not perfected (that is, not sealed) may be recalled includes where a new judicial decision of relevance and high authority has been delivered.  It has been here, but for the reasons explained in [3]‑[5] above, the decision makes it clear that recall is not appropriate.

   [8]They are set out in the judgment of Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

8. The application for recall is accordingly dismissed.

9. Counsel for the respondent filed, on 1 February 2016, a memorandum responding to Mr Creser’s recall application.  We accordingly order Mr Creser to pay the respondent’s costs in the sum of $500.

Solicitors:
Chapman Tripp, Wellington for Respondent