Ross v Family Court at Auckland

[2021] NZHC 3518

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https:// judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000092

[2021] NZHC 3518

UNDER

New Zealand Bill of Rights Act 1990, the Judicial Review Procedure Act 2016 and r 30 High Court Rules 2016

IN THE MATTER

of Judicial Review of decisions under the Care of Children Act 2004

BETWEEN

ROSS

Applicant

AND

THE FAMILY COURT AT AUCKLAND

First Respondent

STANLEY

Second Respondent

Hearing:	On the papers
Judgment:	17 December 2021

JUDGMENT OF WYLIE J

[Recall]

This judgment was delivered by me on 17 December 2021 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           S P Jerebine, Auckland

M J Flannagan, Auckland

Copy to:            Applicant

ROSS v FAMILY COURT AT AUCKLAND [2021] NZHC 3518 [17 December 2021]

[1]                 On 26 November 2021, I issued a judgment in this matter. The judgment was reissued on 9 December 2021 with further anonymisation, as requested by Mr Ross.1

[2]                 On 7 December 2021, Mr Ross applied seeking recall of my judgment. The application was accompanied by submissions, an affidavit from Mr Ross and various annexures.

[3]                 The first and second respondents abide the decision of the Court. All parties have agreed to Mr Ross’ application being dealt with on the papers.

Application for recall

[4]Rule 11.9 of the High Court Rules 2016 reads as follows:

11.9     Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[5]                 It is trite law that, despite the unfettered discretion given by r 11.9, the Court regards the recall of a judgment as a serious step to be taken only in well-identified situations. The leading judgment dealing with recall is that of Wild CJ in Horowhenua County v Nash (No 2).2 Relevantly, it held as follows:

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled –– first, 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 authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[6]Mr Ross has confirmed that his application relies on the third category.

1      Ross v The Family Court at Auckland [2021] NZHC 3204.

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

[7]                 The Court of Appeal has observed that this category is intended to be narrow and that cases arising under it are likely to be rare. It does not permit a challenge to substantive findings of facts and law in a judgment.3

Mr Ross’ application

[8]                 The very special reason relied on by Mr Ross relates to what he describes as “really quite extraordinary and unexpected circumstances”. It appears that the parenting arrangements between him and Ms Stanley have recently changed, as a result of agreement between them. Mr Ross was challenging the legality of various decisions made by Family Court Judges and any more recent arrangement entered into by the parents does not affect the legality of the processes followed by the Judges in determining the matters before them. The changed parenting arrangement cannot be a very special reason justifying recall of my judgment.

[9]                 Mr Ross also asserts that I erred by not referring or giving weight to an affidavit filed by him dated 16 November 2021. This is a challenge to the substantive findings made by me and it is not a matter falling within the scope of a recall application.

[10]Mr Ross advances other grounds in support of his application:

(a)That there were no extant s 46R proceedings before Judge Adams;

(b)There was a transcript of the hearing before Judge Adams available to the Court, albeit that it was not in the common bundle;

(c)He wanted to provide his cross-examination questions to the Court but was deprived of the opportunity to do so because the hearing was held remotely;

(d)Section 95(5) is referred to in error in [85] of the judgment and the correct reference should be s 95(6);

3      Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [28]-[29]; Zhang v Yu [2020] NZCA 592 at [9].

(e)The application for rehearing of Judge Adams’ decision was determined without a hearing;

(f)Because an error was found with respect to Judge Adams’ application of s 95(5), the rehearing decision should be declared unlawful;

(g)I did not properly consider the welfare and best interests of the child, I did not consider updating evidence and I reached a wrong conclusion;

(h)Jagose J erred in declining to allow “certain evidence” to be filed in the review proceedings.

[11]I comment briefly on each.

[12]              Mr Ross claims that I erred when I referred to s 46 of the Care of Children Act 2004 and observed that Judge Adams was inter alia dealing with an application under that section. Whether or not I was wrong in that regard is a question for appeal and not recall. This claim does not amount to a very special reason warranting recall.

[13]              Mr Ross asserts that the transcript of the hearing before Judge Adams was available. He says it was sent by him to the Registrar by email albeit that it did not get into the common bundle. Whether this was or was not the case, and the materiality of the issue (given that I found in favour of Mr Ross in regard to this aspect  of  Judge Adams’ decision), is a matter for appeal. It is not a very special reason which could lead to a recall.

[14]              Mr Ross claims he was deprived of the opportunity to place his cross- examination questions before me because the hearing was held remotely. This is not a very special reason warranting recall. Mr Ross could have placed the questions before the Court despite the hearing proceeding remotely. He did not do so. To allow him to recall the judgment, where he has failed to place evidence before the Court, would be contrary to the principle of finality.

[15]              Errors attributed by Mr Ross to Judge Adams (and to Jagose J) cannot lead to recall of my judgment.

[16]              Nor does any assertion that I did not properly consider the welfare and best interests of the child. That is a matter for appeal, not recall.

[17]              In my view, Mr Ross’ application does nothing more than seek to relitigate matters already decided. I am functus officio and there is no proper basis upon which to recall the judgment.

[18]Mr Ross’ application is declined.

[19]              Costs are to follow the event. Any application for costs by Ms Jerebine is to be filed within 10 working days. Any response from Mr Ross is to be filed within a further 10 working days. I will then decide costs on the papers unless I require the assistance of Ms Jerebine and/or Mr Ross.

Wylie J