Stockman v New Zealand Association of Counsellors Incorporated

IN THE COURT OF APPEAL OF NEW ZEALAND

CA665/2013
[2014] NZCA 560

BETWEEN	PETER GERARD STOCKMAN Applicant
AND	NEW ZEALAND ASSOCIATION OF COUNSELLORS INCORPORATED Respondent

Court:

Wild, French and Miller JJ

Counsel:

Applicant in person
C Heaton for Respondent

Judgment:

(On the papers)

25 November 2014 at 3.30 pm

JUDGMENT OF THE COURT

AThe application for recall is dismissed.
BThere is no award as to costs.

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REASONS OF THE COURT

(Given by French J)

On 3 November 2014 this Court dismissed Mr Stockman’s application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 on the grounds of lack of jurisdiction.[1]
[1]Stockman v New Zealand Assoc of Counsellors Inc [2014] NZCA 531.
Mr Stockman has now applied for an order recalling that judgment.
We are satisfied that the recall application can be adequately and fairly dealt with on the papers.
Mr Stockman submits that the judgment failed to address his argument that he had been granted a de facto extension of time by virtue of an appeal to the Supreme Court. He submits further that the failure to consider this argument brings the case within the third category of recall identified in Horowhenua County v Nash(No 2).[2]
[2]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).
We do not accept that argument. There is no provision in the Rules for deemed or de facto extensions of time and the basis of our decision was that in the face of the clear wording of r 43, the Court has no residual discretion.
There are no grounds for recall and the application is accordingly dismissed.
The respondent advised that it would abide the decision of the Court and therefore there will be no award of costs.

Solicitors:
Morrison Kent, Wellington for Respondent

CaseChat Overview and Summary

The applicant, Peter Gerard Stockman, sought to appeal against the dismissal of his application for an extension of time under Rule 43 of the Court of Appeal (Civil) Rules 2005. The respondent, New Zealand Association of Counsellors Incorporated, opposed the appeal. This case was heard by Wild, French and Miller JJ in the Court of Appeal of New Zealand. The central issue before the court was whether the earlier judgment dismissing the applicant's application for an extension of time could be recalled. The applicant argued that the earlier judgment had failed to address his claim that he had been granted a de facto extension of time due to an appeal to the Supreme Court, and that this failure brought the case within the third category of recall as identified in Horowhenua County v Nash (No 2).

The court found that the Rules do not provide for deemed or de facto extensions of time. The court held that it had no residual discretion in the face of the clear wording of Rule 43 and that there were no grounds for recall. The applicant's argument that he had been granted a de facto extension of time by virtue of an appeal to the Supreme Court was rejected by the court. The court dismissed the recall application and no award of costs was made as the respondent had advised that it would abide by the court's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established