Siemer v Auckland High Court

[2014] NZHC 943

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3768 [2014] NZHC 943

BETWEEN

JANE CHAPMAN SIEMER

Plaintiff

AND

AUCKLAND HIGH COURT Second Defendant

AND

RODNEY HAROLD HANSEN Second Defendant

On the papers
Appearances:	Plaintiff in person D Baltakmens for Defendants
Judgment:	7 May 2014

JUDGMENT (NO. 2) OF TOOGOOD J [Application for Recall]

This judgment was delivered by me on 7 May 2014 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

SIEMER v AUCKLAND HIGH COURT [2014] NZHC 943 [7 May 2014]

[1]      The   plaintiff   applies   for   a   recall   of   the   judgment1     delivered   on

20 December 2013, in which I struck out the plaintiff’s claim against the first and second defendants and made directions as to costs.  The application incorporates an earlier application for correction of the judgment because of the inadvertent omission in the intituling of the name of the second defendant.   I deal with that application also in this judgment.

[2]      The asserted grounds for recall are:

(a)      The judgment is demonstrably incorrect as a record.

(b)Findings  in  the  judgment  directly  contradict  the  Court  record “minimally creating legal confusion which can easily be corrected, and will likely undermine the integrity of the Court if not corrected.”

(c)      A finding  that  the  plaintiff  was  susceptible  to  indemnity costs  in respect of the appearance of counsel for the defendants at the hearing was based on an error.

(d)There  were  conflicts  in  the  Court’s  findings  in  relation  to  the procedural background to the plaintiff’s claim.

[3]      As is conceded by counsel for the defendants, it is appropriate to recall the judgment to correct the erroneous finding that the plaintiff did not notify counsel or the Court that she would not be attending the hearing on 6 December 2013.   In written submissions emailed to the Court on 6 December 2013, which contained the plaintiff’s arguments in opposition to the application by the defendants to strike out the statement of claim, Mrs Siemer said (in the final paragraph):

The plaintiff sees nothing further she could add at a strike out hearing and seeks to rely upon these written submissions and her notice in lieu of appearance.

[4]      It is correct that when I delivered judgment on 20 December 2013, following a brief hearing on 6 December 2013, I overlooked the indication in that paragraph

that Mrs Siemer would not be appearing.   The basis upon which I indicated that indemnity costs on the appearance would be appropriate was incorrect.

[5]      The omission of the second defendant, Justice Rodney Hansen, from the intitulment to the judgment reflected the similar omission of the Judge’s name from the plaintiff’s submissions, but was in error.

[6]      As to the other grounds for recall, I am satisfied on an application of the principles outlined in Horowhenua County v Nash (No 2)2 that, apart from the error concerning Mrs Siemer’s non-appearance at the hearing, there is no other reason justifying recall of the judgment.  The plaintiff has appealed against the judgment raising allegations that the Court erred in making certain findings as to the basis upon which the plaintiff ’s claim should be struck out.  I am not persuaded that there is any error justifying a recall and the plaintiff ’s remedies, if any, lie in an appeal.

[7]      The judgment will be recalled, however, to correct the error in relation to indemnity costs.   The reissued judgment will incorporate a reference to the defendants’ subsequent claim for costs on a Category 2B basis and a direction that the plaintiff shall file any submissions in opposition to the costs claim.

[8]      Accordingly I grant the plaintiff’s application and the judgment in Siemer v

Auckland High Court [2013] NZHC 3540, issued on 20 December 2013 is recalled.

……………………………………..

Toogood J