S v Attorney-General

[2023] NZHC 371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-851

[2023] NZHC 371

UNDER

The Judicial Review Procedure Act 2016

IN THE MATTER OF

Judicial Review of the decision to commit the applicant to trial in the District Court

BETWEEN

S

Applicant

AND

THE ATTORNEY GENERAL

First Respondent

THE AUCKLAND DISTRICT COURT

Second Respondent

Hearing:	On the Papers at Auckland
Judgment:	28 February 2023

JUDGMENT OF POWELL J

(Application to Recall)

This judgment was delivered by me on 28 February 2023 at am/pm.

Pursuant to R 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors:

Crown Law, Te Tari Ture o Te Karauna, Wellington

Copy:

Legal Documents Officer, Auckland South Correctional facility, Auckland

S v THE ATTORNEY GENERAL [2023] NZHC 371 [28 February 2023]

[1]    On 17 November 2022, I dismissed judicial review proceedings brought by the applicant.1 For the reasons set out in my judgment I concluded that all issues that the applicant wished to raise, including whether he had been committed for trial in error, had previously been determined,2 and in any event had no merit.3 The applicant has now sought to have that judgment recalled, a course of action opposed by the Attorney- General.

[2]    As the applicant is well aware,4 it is settled law that a judgment can only be recalled in very limited circumstances. Those circumstances are set out in Horowhenua County v Nash (No.2):5

… first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and higher 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.

[3]    Having considered the present application for recall it is clear that none of these categories apply. Instead, as Ms Hamill submitted on behalf of the Attorney-General, the applicant has simply attempted to relitigate and recast the arguments brought before me in the course of determining the application to strike-out, including the cases cited by the applicant regarding the doctrine of nullity. Those cases, filed by the applicant without leave following the hearing, were nonetheless considered by me and which I concluded were not relevant to the issues for determination.6

[4]    Given this position I decline to recall my judgment. The application for recall is accordingly dismissed.

[5]    As with my earlier judgment, I conclude that the Attorney-General is entitled to costs. Any memorandum of the Attorney-General is to be filed by 10 March 2023

1      S v Attorney-General [2022] NZHC 2992.

2      At [7]–[24].

3      At [25]–[27].

4 See [14], [16], [19]–[21].

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

6      S v Attorney-General, above n 1, at [25], n 30.

and any response on behalf of the applicant by 24 March 2023. I will then determine any issues arising on the papers.

Powell J