Sexton v Rice Craig

[2008] NZCA 324

IN THE COURT OF APPEAL OF NEW ZEALAND

CA137/06
[2008] NZCA 324

BETWEENBARRY DEAN SEXTON

Applicant

ANDRICE CRAIG

First Respondent

ANDRICE CRAIG NOMINEE COMPANY LIMITED

Second Respondent

Court:Hammond, Chambers and Arnold JJ

Counsel:Applicant in person

Judgment:27 August 2008 at 10 am

(On the papers)

JUDGMENT OF THE COURT

The application for recall of the judgment of this Court ([2007] NZCA 200) is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1] On 23 May 2007 this Court dismissed an application for special leave to appeal out of time under r 29(4) of the Court of Appeal (Civil) Rules 2005 against a decision of Winkelmann J striking out the applicant’s claims against the first and second respondents: [2007] NZCA 200. That application followed the deemed abandonment under r 43 of an appeal which was brought within time.

[2]       The Court, by a majority (Hammond and Chambers JJ), considered that the application should be refused because Winkelmann J’s decision was correct on the basis of the pleadings before her (at [48]).  The Judge was not obliged to give the applicant another chance to plead his claim.  While she could have taken that course, the Judge was justified in taking the view that such wholesale changes were required that the better course was for the applicant to start again, if he could.  The majority considered that the difficulties in the applicant’s pleadings, coupled with the unsatisfactory nature of the explanation given for the failure to utilise the mechanisms in r 43 to obtain further time, meant that the necessary compelling case for granting leave under r 29(4) in deemed abandonment cases had not been made out.

[3]       Mr Sexton then endeavoured to lodge an application for leave to appeal to the Supreme Court of New Zealand against this Court’s refusal of leave. The Registrar declined to receive the application, on the basis that Court had no jurisdiction to accept it. That rejection for want of jurisdiction was confirmed in a judgment of the Supreme Court delivered on 25 June 2007: [2007] NZSC 47.

[4]       By an application dated 10 April 2008 and lodged with this Court on 14 April 2008, Mr Sexton applied for leave to recall our judgment of 23 May 2007.  The application was made in person.

[5]       Notwithstanding that the application was lodged on 14 April 2008, it is entirely regrettable that the Registrar overlooked the matter and it was only placed on the presiding Judge’s desk on 14 August 2008.  This is quite unsatisfactory, and the Registrar has acknowledged that.  The panel has been unable to deal with the matter simply because it did not know of the existence of the application.

[6]       We do not know if the application has been served – there is no affidavit of service – and presently there is no notice of opposition.  However, we do not find it necessary to trouble the respondents further, let alone put them to further expense.  They are not prejudiced, in view of the course we propose to take.

[7]       There is undoubtedly in this Court power to recall a judgment.  The relevant principles have long since been established: Horowhenua County v Nash (No 2) [1968] NZLR 632. We do not need to recite those principles; Mr Sexton referred to them, and is clearly acquainted with them. He correctly noted in his application that there has to be a “very special reason” for a judgment to be recalled.

[8]       Before we come to that issue, however, there is an important preliminary point.  The judgment of this Court on the special leave application was given as long ago as 23 May 2007.  It was almost a year later that Mr Sexton applied for the recall of the judgment.  There is no affidavit or submissions explaining the delay and on that ground alone this application must fail.  The May 2007 judgment of this Court and the June 2007 judgment of the Supreme Court of New Zealand brought finality to the proceedings, and the parties were entitled to act in accordance with our judgment.  If a party is subsequently going to say that a judgment should be recalled, then that recall application should be made promptly; if the application is not made promptly, there needs to be a convincing explanation for the delay.  Here there is no explanation for a delay of some ten months.

[9]       As to the suggested reason for recall, the application is several pages long.  It is in many ways simply a retraverse of concerns previously suggested by Mr Sexton.  It is not putting it too high to say that what Mr Sexton is really saying is that it is “unjust” that he lost out in the proceedings.  That will not do on an application of this kind.  An application for a recall is not a further right of appeal.  Such an application will normally be quite specific: that something was overlooked, or miscalculated or the like.  We do not intend those observations to be exhaustive.  But what is not open to an applicant is to say that the judgment was wrong, as Mr Sexton suggests.

[10]     This application falls well short of the mark.  It is dismissed.

Solicitors:
Bell Gully, Auckland for First and Second Respondents