Te Hei v Hawkins

[2023] NZHC 1707

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-032

[2023] NZHC 1707

UNDER

the Prisoners’ and Victims’ Claims Act 2005

IN THE MATTER OF

an appeal from the Victims’ Special Claims Tribunal

BETWEEN

SAM TE HEI

Appellant

AND

IDA HAWKINS

Respondent

AND

ATTORNEY-GENERAL

Intervener

Hearing:

3 July 2023

Appearances:

A J Ellis for the Appellant

No appearance for the Respondent
No appearance for the Attorney-General

Minute:

4 July 2023

JUDGMENT OF PALMER J

Solicitors

A J Ellis, Barrister, Kawakawa & Wellington N M Pender, Barrister, Wellington

Nat Dunning Law, Wellington Crown Law Office, Wellington

TE HEI v HAWKINS [2023] NZHC 1707 [4 July 2023]

Previous decisions

[1]    On 30 November 2022, I allowed an appeal by Mr Te Hei from a decision of the Victims’ Special Claims Tribunal (the Tribunal) under the Prisoners’ and Victims’ Claims Act 2005 (PVC Act).1 The Tribunal consists of a designated District Court Judge. Section 51 of the PVC Act provides that a party may appeal a Tribunal’s decision to the High Court on questions of law only.

[2]    On 17 March 2023, by consent, I granted leave to Mrs Hawkins to appeal my decision, under s 60 of the Senior Courts Act 2016 (the Act).2 Section 60 provides for decisions of the High Court on appeal from the District Court to be final unless leave to appeal is obtained.

Application for recall

[3]    Mr Te Hei applies for recall of my decision granting leave to appeal, to which he had consented. He does not object to the appeal proceeding. But his counsel, Dr Ellis, now considers appeal is available as of right under s 56(1)(a) of the Act, so leave was not required. He cites the case of Van Silfhout v Pathirannehelage, where the appeal was determined without a leave application.3

[4]    Whether leave was required in this case has already been aired in the Court of Appeal. On 5 May 2023, Goddard J issued a minute extending time for Mrs Hawkins to appeal, if any extension was required. He also directed that Mr Te Hei may file a cross-appeal or support the decision on other grounds. He stated:

[3] In circumstances where it is common ground that Ms Hawkins should be permitted to pursue her appeal, whether or not leave was required, it seems wasteful and inefficient to devote resources to arguing about the precise basis on which it is brought. Rather, it is sensible to proceed on the basis that leave was not required under s 60 of the Senior Courts Act.

1      Te Hei v Hawkins [2022] NZHC 3170.

2      Te Hei v Hawkins [2023] NZHC 553.

3      Van Silfhout v Pathirannehelage [2023] NZCA 5.

Parties’ positions

[5]    In today’s call of the application for recall in the Judge’s Chambers List, Ms Pender did not appear for Mrs Hawkins on the basis her client has no residual interest in Mr Te Hei’s recall application and did not wish to be heard. She had previously filed a memorandum submitting that leave to appeal was not available as of right. Dr Ellis, for Mr Te Hei, clarified that he is concerned that the issue of whether appeal from the Tribunal is available by way of leave, or as of right, should be made clear for future potential appellants. He is happy to pursue the matter through whatever procedural route is appropriate.

Appropriate procedure

[6]    I have concluded that the application for recall is not the appropriate procedure by which the issue is best clarified. Section 56(1)(a) was not drawn to my attention at the time of the 17 March 2023 decision. But both parties proceeded on the basis it was not relevant. They agreed the appeal should proceed. The decision had the same effect as the application of s 56(1)(a) would have had. Its application has not been the subject of argument on both sides. And the Court of Appeal considers devoting resources to the issue in these circumstances would be wasteful and inefficient. In these circumstances, I do not consider there are good grounds to recall the decision of 17 March 2023. I dismiss the application.

[7]    Mr Te Hei could pursue the matter by appealing the 17 March 2023 decision or this decision. That is up to him. But Goddard J’s minute suggests the Court of Appeal is not keen to entertain arguments about an issue which is, after all, moot in this case. Otherwise, the concern of Mr Te Hei and Dr Ellis may be met by this judgment airing the jurisdictional issue sufficiently to put future litigants on notice of the potential issue.

Palmer J