Spence v Lynch

[2015] NZHC 735

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7681 [2015] NZHC 735

BETWEEN

STUART GORDON SPENCE

Plaintiff

AND

CHRISTOPHER MAURICE LYNCH Defendant

AMANDA ADELE WHITE First Third Party/First Applicant

ANNE LEOLINE EMILY FREEMAN Second Third Party/Second Applicant BANK OF NEW ZEALAND

Non-Party/Respondent

Hearing:	On the papers
Counsel:	First and second applicants in person L A O'Gorman for respondent
Judgment:	17 April 2015

JUDGMENT OF KATZ J [Application for recall of judgment]

This judgment was delivered by me on 17 April 2015 at 9:30am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Buddle Findlay, Auckland

And to:              A White and A L Freeman

SPENCE v LYNCH, WHITE & ORS [2015] NZHC 735 [17 April 2015]

Introduction

[1]      Amanda White and Anne Freeman (“the applicants”) were third parties in these  proceedings,  which  were  substantively  determined  on  19  June  2013  by Priestley J.  Shortly before trial they sought non-party discovery of three categories of documents from the Bank of New Zealand.  I ordered discovery in relation to two of those categories, by way of judgment dated 9 May 2013.   The application for documents falling within a third category was not pursued, on the basis of advice from the Bank of New Zealand that the bank statements sought could be obtained without the need for a court order, either through internet banking or in hard copy (on payment of the usual fee of $5.00 per statement).  The Bank complied with the non-party discovery orders that were made.

[2]        Eighteen  months  or  so  after  the  proceedings  had  been  substantively determined in this Court (I understand there is an extant appeal), the applicants applied to rescind my judgment of 9 May 2013 pursuant to rule 7.51 of the High Court Rules.  I declined  that  application  by judgment  dated  30  March  2015.    I concluded that there was no evidence that the non-party discovery orders (which the applicants had sought) were obtained fraudulently or improperly in terms of r 7.51.

[3]      The applicants now seek a recall of my 30 March 2015 judgment, and request that certain sentences be inserted into it “to reflect the true position of all parties”.  In essence, the applicants are hoping to achieve by way of the recall application what they failed to achieve in their application to rescind.

Legal principles

[4]      Rule 11.9 of the High Court Rules provides:

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]      The leading statement in New Zealand is the oft-cited statement of Wild CJ in

Horowhenua County v Nash (No 2) that:1

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.

(emphasis added)

[6]      The Court of Appeal reviewed Wild J’s more open third category in Unison Networks v Commerce Commission.2   They stated that where that category was used to advance arguments based on how the Court has considered an issue, it should be “narrow” and was intended to be ‘rare”.

The recall application

[7]      Ms  White  and  Ms  Freeman  essentially  rely  on  the  third  category  in Horowhenua County v Nash (No 2), namely that it is in the interests of justice that the 30 March 2015 judgment be recalled and, further, that it be reissued with additional sentences inserted into it.

[8]      At  the  heart  of  both  the  application  to  rescind  and  the  current  recall application  are  the  following  passages  in  my  non-party  discovery  judgment  of

14 May 2013:

[12]      The Bank’s evidence in relation to Request C was that, in respect of bank accounts for the DCT Trust account generally, documents prior to April

2006 no longer exist, as the bank does not keep records for longer than seven years. The Bank had previously advised Ms White of this.

[13]      Documents  subsequent  to April  2006  are,  however,  available  to Ms White via her online banking facility, at no charge (as Ms White had also been  previously  advised).    Further,  the  Bank  has already  supplied  bank

1      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved of in Saxmere Co

Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76.

2      Unison Networks v Commerce Commission [2007] NZCA 49.

statements for the DCT Trust account up to April 2009 to Ms White at no charge.

[14]      The only further documents that could be provided are hard copies of  bank  statements  from  April  2009  onwards. The  Bank  has  advised Ms White, however, that these are available at no cost through her internet banking facility.  If hard copies of any statements from April 2006 onwards are required these can be supplied at a cost of $5.00 per statement.

[15]      The third parties confirmed during the hearing that they did not pursue this limb of the application.   Given  the previous correspondence between the parties it is somewhat unclear as to why the third parties continued to seek discovery of these documents at all.   Unfortunately the Bank was put to the time and expense of filing a notice of opposition and evidence on the issue.

[9]      Paragraphs [12] to [14] essentially summarise the Bank’s evidence in relation to the third category of documents that had been requested by the applicants and record the applicants’ decision not to pursue that limb of their application.

[10]     The applicants say, however, that they were subsequently not able to access the relevant bank statements through their internet banking facility. It is not clear whether they then exercised their right to obtain hard copies of the relevant statements.    They  would  like  sentences  to  be  added  to  either  my  judgment  of

30 March 2015 or, possibly, my original non-party discovery judgment of 9 May

2013, confirming that they could not in fact access the statements through online banking.  In effect they would like the Court to consider fresh evidence as to whether the relevant  documents  were available online  at  the material  time,  and  make a determination in their favour on that issue.

[11]   The request is misconceived. It is not appropriate for this Court to retrospectively insert factual findings into an interlocutory judgment relating to a specific discovery request that was abandoned. That is particularly so in circumstances where the proceedings have been substantively determined and this Court, save for certain very narrow exceptions, is now functus officio.  Further, the sentences which the applicants seek to insert into the 30 March 2015 judgment are not relevant to the issues that were raised by the application to rescind which were, essentially, whether the discovery orders that had been made were fraudulently or improperly obtained.

[12]     If the applicants’ view at the time of trial was that they had been misled by the Bank regarding the availability of certain bank statements, to their prejudice, this was an issue that should have been raised squarely with the trial Judge who could have taken appropriate steps to address any prejudice (including an adjournment, if necessary). The matter cannot now be retrospectively addressed, almost two years later, by rescinding the non-party discovery orders that were made on the application of the applicants.   Nor is it appropriate to insert additional sentences (requiring findings on disputed factual issues) into earlier judgments that did not require resolution of those factual issues.

Result

[13]     The recall application is declined.

[14]     As the Bank has taken no active steps to oppose the application I make no award as to costs.

Katz J