Roger John Payne v Jeanette Rosslyn Payne
[2000] NZCA 391
•14 December 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 120/00 |
| BETWEEN | ROGER JOHN PAYNE |
| Applicant |
| AND | JEANETTE ROSSLYN PAYNE |
| Respondent |
| Hearing: | 11 December 2000 |
| Coram: | Richardson P Blanchard J Tipping J |
| Appearances: | Applicant in person K Ertel for Respondent |
| Judgment: | 14 December 2000 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
Mr Payne seeks recall of the judgment of this court of 24 October 2000 refusing his application for special leave to appeal to this court against two judgments of Goddard J, both delivered in the High Court on 24 March 2000, one relating to matrimonial property and the other to a protection order under the Domestic Violence Act 1995; and also against the judgment of McGechan J delivered in the High Court on 12 May 2000 refusing leave to appeal to this court against the judgment of Goddard J in the matrimonial property proceedings.
A differently constituted court sat to hear the application for recall. We heard extensive oral submissions in support of the Affirmation of Mr Payne filed in support of the application for recall. The submissions and the Affirmation traverse in some detail the history of the breakdown in the family relationships, which has led to some 30 hearings in the Family Court, the High Court and this court. While that was important to our understanding of the issues before this court in October, the narrow question now for our consideration is whether, applying well settled principles, it is a proper case for granting an order recalling the decision of 24 October 2000.
The leading case on the recall of judgments is Horowhenua County v Nash (No 2) [1968] NZLR 632, which has been approved and applied in this court on numerous occasions over the last 30 years. Recall of judgment is appropriate, the Chief Justice said:
hWhere, since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;
hWhere counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance;
hWhere for some other very special reason justice requires that the judgment be recalled.
It is not a sufficient justification that the applicant seeks to revisit issues ventilated and adjudicated on by the court concerned (AMP Finance NZ Ltd v Heaven (CA 151/97, judgment 11 March 1998)). The ultimate test is the interests of justice but, where there is no misunderstanding as to the issues raised and the re‑opening would be a relitigation of the matter, considerations of finality and certainty will at least ordinarily lead to a refusal to recall the judgment.
It is not surprising that the legislation confines the right to a second appeal. A first appeal is ordinarily seen as providing appropriately for consideration and correction of material error in the court below whether the material error is of law or fact. Thereafter, considerations of finality and cost ordinarily require a more stringent test before leave is given for a second appeal.
As this court noted in para [7] of its judgment of 24 October, the matters in question have had a long and unsatisfactory history. But, it continued:
[7] ... The essential issues are however straightforward. There are unresolved proceedings in the Family Court for the division of matrimonial property. On 27 August 1996 Judge Moss, as a condition of granting (pending appeal) a stay of an order for occupation with a view to sale of the matrimonial home, required Mr Payne to pay into court half of the value of the property determined at the median of two valuations. Mr Payne did this and thereafter has been of the set view that he has purchased the property and is entitled to have a caveat removed from the title. It is abundantly clear, however, that the payment was not intended to bring about final settlement of the matrimonial property division in respect of the house property. That is apparent from the judgment of Judge Moss in which she said:
I will grant that stay, but subject to the following terms:
1. Mr Payne is to undertake in writing and file on the court file that he remains ready to settle the sale at the price calculated. It is not intended that that must be the price at which the sale occurs. That may be subject to a further application of course.
2. Mr Payne must prosecute his appeal diligently.
3. He must pay the proposed settlement funds at the figure he proposed of $118,750 being half of the calculated median value, either into the court or, if the parties can agree, to be held by an agreed solicitor on interest bearing deposit. The interest is to accrue for the benefit of Mrs Payne, whether or not that is the ultimate figure which Mr Payne pays in order to purchase her half share of the property and whether or not the property is ultimately owned in full by Mr Payne or sold to a third party. Failing agreement between the parties as to the investment of the funds on interest bearing account by a solicitor, I direct that the Registrar invest the funds in an interest bearing account.
[8] Subsequently, with a view to the substantive hearing on the matrimonial property application the direction was given, at the request of Mrs Payne, for a further valuation. Mr Payne has refused to allow the valuation because he believes that the home is his and a further valuation is unnecessary and will be unhelpful because of the improvements he has made since separation.
The court went on to say that the further valuation might or might not prove to be of assistance before the Family Court. However, the revaluation order was an interlocutory order which had been reviewed by the High Court. It was not, this court said, a matter of wider importance than to the parties to the dispute and was not appropriate for leave to bring a second appeal.
Next, as to the protection order, s93(1) of the Domestic Violence Act confines any grant of leave for a second appeal to determinations of the High Court on questions of law. As to that application, the court said:
[12] The application for leave to appeal from the High Court decision upholding the protection order reflects Mr Payne’s hurt at having such an order made as a result of writing one letter he considers he was entitled to write. But that order also has been reviewed in the High Court and is not a matter raising a question of law of such importance beyond the interests of the particular parties as justifies a second appeal.
We should add that Goddard J dealt at some length with the requirements of s14 for the making of a protection order under the two headings, "Has the Appellant Used Domestic Violence Against the Respondent?" and "Is a Final Protection Order Necessary?".
We have also reviewed the judgments of Goddard J dismissing the two appeals, the written submissions made to this court in October, and the written and oral submissions made to us on the recall application. We are not persuaded that in conformity with the principles governing recall applications referred to in para [3] the interests of justice require recall.
In that regard Mr Payne submitted that the court had gone on at the October hearing to consider the merits of the special leave application in relation to matrimonial property whereas he understood the hearing was to be confined to procedural questions. But the court recorded that it had considered his lengthy Affirmation and had also considered the further submissions on the merits he had filed on 18 October subsequent to the oral hearing. The court clearly understood the arguments advanced by both sides in respect of the leave application and considered the merits as part of its overall assessment.
For these reasons the application for recall of the judgment is dismissed. Costs are reserved, to be dealt with when the substantive proceedings are determined. It is apparent that Mr Payne feels very deeply about these matters but he may now appreciate that the jurisdiction of this court is limited to the specific applications before it and can only be exercised applying well established principles.
Finally, we should record that Mr Payne had asked the Court Office ahead of the hearing to have a complete record made of the oral argument. He was advised orally at the hearing that the Judges would follow their usual practice and take such notes of the oral argument as they considered appropriate for their use.
Solicitors
Kathy Ertel & Co, Wellington, for respondent
0
0
0