Wilkinson Adams v Bethune

[2012] NZHC 1108

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2011-412-000860 [2012] NZHC 1108

UNDER  the District Courts Act 1947

IN THE MATTER OF     an appeal pursuant to s 72 of the District Courts Act 1947 in respect of a decision of the District Court at Dunedin

BETWEEN  WILKINSON ADAMS Appellant

ANDR J BETHUNE Respondent

Hearing:         On the papers

Judgment:      23 May 2012

JUDGMENT OF CLIFFORD J ON APPLICATION TO RECALL JUDGMENT

[1]      I have considered Wilkinson Adams’ application to recall my judgment dated

9 May 2012,  and the respondent’s  memorandum of 18 May.    I take  it that the reference in [2] of the respondent’s memorandum should have been to my judgment.

[2]      Recall is provided by HR 11.9.  In terms of the Erwood v Maxted guidelines,[1]

I am considering Wilkinson Adams’ application on the papers.

[1] Erwood v Maxted [2010] NZCA 93 at [23].

[3]      As McGechan observes, the leading statement in New Zealand on recall remains that of Wild CJ in Horowhenua County v Nash:[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 den of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

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

[4]      Moreover, in Erwood v Maxted the Court of Appeal has indicated that the criteria set out in Horowhenua County are to be strictly applied.   I am satisfied, having  considered  my  judgment,  the  Wilkinson  Adams’  application  and  those criteria, that this is not an appropriate case for recall.  The first two circumstances clearly do not apply.   Nor, in my view, does the Wilkinson Adams memorandum identify any other “very special reason” why justice requires that the judgment be recalled.

[5]      If I have erred, then Wilkinson Adams needs to consider available rights of appeal.

[6]      I do record that, having reviewed the written submissions and my notes, I do not recall Wilkinson Adams’ submissions before me being directed – as the firm’s recall memorandum appears to emphasise – to the terms upon which judgment might be set aside.  I simply refer to [25] of Wilkinson Adams’ written submissions before me where, under the heading “Relief sought” the following text appears:

It is submitted that as the District Court Judge has clearly indicated that on the merits the respondent’s claim for rehearing should be dismissed and in fact has dismissed the claim, that this Court should confirm the dismissal of the application.

[7] The application to recall is declined. Although I have some sympathy with the position of Mr Bethune, I will not separately rule on the question of costs. I note, however, my observations at [49]. They apply equally to this application.

“Clifford J”

Solicitors:

Wilkinson Adams, Dunedin for the appellant ([email protected]) Farry & Co, Dunedin for the respondent ([email protected])