Siemer v Legal Complaints Review Officer

[2022] NZHC 1485

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-0099

[2022] NZHC 1485

BETWEEN

VINCENT SIEMER

Applicant

AND

LEGAL COMPLAINTS REVIEW OFFICER

First Respondent

CLAYTON LUKE

Second Respondent

JANE SIEMER

Third Respondent

Hearing:

Dealt with on the papers

(Memorandum dated 4 May 2022)

Judgment:

23 June 2022

JUDGMENT OF HARLAND J

(Request to recall judgment on costs)

This judgment was delivered by me on 23 June 2022 at 3.30 pm, pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar  Date……………………………..

Solicitors/Counsel:

Crown Law, Wellington Meredith Connell, Auckland K Muller, Auckland

Copy to: V Siemer and

J Siemer

SIEMER v LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 1485 [23 June 2022]

[1] On 3 May 2022 I decided an application by Mr Siemer for costs against the second respondent, Mr Luke.1 Mr Siemer now applies for recall of the judgment on the basis of two passages from paragraph [28].

[2]                   The first passage reads “Ms Muller did not respond to Mr Luke’s claim for travel reimbursement”. This should read “Mr Siemer’s claim for travel reimbursement”.

[3]The second passage reads:

The decision to reserve my judgment rather than proceed with the formal proof hearing was not something Mr Luke could have anticipated, nor was he responsible for my decision to reserve judgment.

[4]                   On this basis I declined to award Mr Siemer disbursements for travelling to the hearing.

[5]Mr Siemer submits he was entitled to these disbursements as:

(a)There was no foundation for my finding that Mr Luke could not have anticipated my reserving judgment.

(b)Neither party argued this.

(c)Mr Luke’s counsel was responsible for the delay and so should have anticipated it.

(d)This was a straw man argument, and I should have given notice of it to Mr Siemer.

(e)I gave no indication to Mr Siemer that the formal proof hearing would not go ahead.

1      Siemer v Legal Complaints Review Officer [2022] NZHC 908.

Law

[6]The leading case on recall is Horowhenua County v Nash (No 2), which says:2

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.

[7]                   Recall is a serious step and must be exercised with care. It cannot be used to challenge any substantive findings of fact and law in a judgment, and nor can it be used as a substitute for appeal.3 It is for “demonstrable, material defects that speak for themselves… If complex, contested matters of fact are advanced, appeal is the appropriate route”.4

[8]                   Where the error in question is a clerical error arising from a minor slip, the slip rule can be used.5 This rule can be used to correct the name of a party made by a clerical mistake rather than a procedural error such as misjoinder.6

Discussion

[9]                   The first passage does not challenge a substantive finding of fact; the context makes it clear naming Mr Luke instead of Mr Siemer was simply a clerical error. This can be corrected, under the slip rule, to read “Mr Siemer’s claim for travel reimbursement”.

[10]               The second passage involves a substantive finding of fact, which determined in part the outcome of the application. I do not consider it is open to me to recall my judgment on this basis. The correct response to a contested factual finding such as

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

3      Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9].

4      Erwood v Maxted [2020] NZCA 537 at [8].

5      High Court Rules 2016, r 11.10.

6      Allan Scott Wines & Estates Holdings Ltd v Lloyd (2006) 18 PRNZ 199 (HC).

this one is appeal, not recall. I note Mr Siemer has appealed the judgment of 3 May 2022 in any event.

Result

[11]               The application for recall is dismissed. However, I order, under the High Court Rules 2016, r 11.10, that the first sentence of paragraph [28] of my judgment be amended to read “Ms Muller did not respond to Mr Siemer’s claim for travel reimbursement”.

Harland J